The Volokh Conspiracyhttp://volokh.com
Commentary on law, public policy, and moreTue, 30 Jun 2015 14:06:16 +0000en-UShourly1http://wordpress.org/?v=4.2.3Why the Court should uphold Congress’s power in the Jerusalem Passport casehttp://volokh.com/2014/04/24/jerusalem-passport-case-recognition/
http://volokh.com/2014/04/24/jerusalem-passport-case-recognition/#commentsThu, 24 Apr 2014 18:10:41 +0000http://volokh.com/?p=80646I am not thrilled that the Supreme Court granted certiorari in the Jerusalem Passport Case, Zivotofsky v. Kerry. I continue to think the case is non-justiciable (though not for political question grounds rejected by the Court in their prior encounter with the case), for reasons I will explain in a subsequent post. But I’ve increasingly taken a more generous view of the separation of powers merits.

Recall that Congress passed a law requiring “Israel” to be listed as the country of birth of those Americans born in Jerusalem, but a series of presidents have refused to so, simply letting it say “Jerusalem,” without a country. President Obama claims that complying with the law could have disastrous foreign policy consequences, and possibly lead to war (which itself might be a reason to think the decision belongs to Congress).

The case is widely seen as one about the recognition power, and it is widely thought that the President has a primary role in matters of “recognition.” Recognition comes in two flavors – recognizing countries as sovereign entities and the regimes that run them as proper governments. But the Jerusalem flap involves neither. Congress and the President agree that Israel exists and what its legitimate government is. (And the Executive has been inconsistent in its denials of Jerusalem’s location.)

Nor is this about the terms on which recognition is granted. The question here is an unusual one – the President agrees Israel exists, but just does not want to say that Jerusalem is in it. This is more one of border determination – is West Jerusalem in the recognized country of Israel, or in no country, as the executive sometimes maintains. Seen this way, the issue does not fall within the classic recognition paradigm, and we must consider how [...]

]]>I am not thrilled that the Supreme Court granted certiorari in the Jerusalem Passport Case, Zivotofsky v. Kerry. I continue to think the case is non-justiciable (though not for political question grounds rejected by the Court in their prior encounter with the case), for reasons I will explain in a subsequent post. But I’ve increasingly taken a more generous view of the separation of powers merits.

Recall that Congress passed a law requiring “Israel” to be listed as the country of birth of those Americans born in Jerusalem, but a series of presidents have refused to so, simply letting it say “Jerusalem,” without a country. President Obama claims that complying with the law could have disastrous foreign policy consequences, and possibly lead to war (which itself might be a reason to think the decision belongs to Congress).

The case is widely seen as one about the recognition power, and it is widely thought that the President has a primary role in matters of “recognition.” Recognition comes in two flavors – recognizing countries as sovereign entities and the regimes that run them as proper governments. But the Jerusalem flap involves neither. Congress and the President agree that Israel exists and what its legitimate government is. (And the Executive has been inconsistent in its denials of Jerusalem’s location.)

Nor is this about the terms on which recognition is granted. The question here is an unusual one – the President agrees Israel exists, but just does not want to say that Jerusalem is in it. This is more one of border determination – is West Jerusalem in the recognized country of Israel, or in no country, as the executive sometimes maintains. Seen this way, the issue does not fall within the classic recognition paradigm, and we must consider how the various powers of the branches bear on this question.

Thus the President is not really relying on his recognition power, but on a more general foreign relations power. This power exists, but on the other hand, Congress also points to an enumerated power – Immigration and Naturalization.

It seems that Congress must be able to make determinations about what country places are in to exercise its constitutional powers. Take the War Power. Imagine Congress declares war on Vietnam. It would seem the president could not justify bombing Laos by saying he has decided that Laos is in Vietnam. Congress’s power to declare War on countries necessarily involves a power to determine what places are in those countries and which are not. Otherwise, any declaration of war would be a global blank check to the president.

Or imagine if Congress passed a law, pursuant to its Foreign Commerce power, eliminating tariffs from products from China. The Executive could not continue to apply tariffs to products from, say, Tibet, on the grounds that he thinks it is not really part of China (especially Congress clearly included Tibet).

In short, any legislative power regarding foreign matters requires Congress to be able to make territorial determinations about the countries to which it applies. Immigration seems to be a reasonable application. Congress wants to have certain visa rules for some countries and not others. To make such a regime work, it needs to be able determine what places are in what countries. Lets say Congress adopts a liberal visa regime with China. If the Executive does not apply it to Tibet, or the territory of the former Second East Turkmen Republic, Congress’s legitimate and normal exercise of its powers would be nullified.

]]>http://volokh.com/2014/04/24/jerusalem-passport-case-recognition/feed/0Move to the Washington Post Sitehttp://volokh.com/2014/01/22/move-washington-post-site/
http://volokh.com/2014/01/22/move-washington-post-site/#commentsWed, 22 Jan 2014 15:51:07 +0000http://volokh.com/?p=80634We’ve moved to the Washington Post site, as part of a new joint venture with the Post; if you aren’t redirected automatically, please click here. [...]

]]>http://volokh.com/2014/01/22/move-washington-post-site/feed/0The Economics of Credit Card Securityhttp://volokh.com/2014/01/21/economics-credit-card-security/
http://volokh.com/2014/01/21/economics-credit-card-security/#commentsTue, 21 Jan 2014 20:10:01 +0000http://volokh.com/?p=80625The WSJ has an interesting article today on the Target credit card security breach. As the article notes, the US card system is less secure than elsewhere in the world, most notably Europe, which has a “chip and PIN” system, which has a computer chip embedded in the card and requires the purchaser to insert a PIN as well to make a transaction. The Target security breach has led many to wonder–and implicitly the WSJ–why the US has lagged on adopting this more secure technology.

Well it turns out that the economics of credit card security is more complicated than it appears at first glance. But first, an important thing to keep in mind: historically the United States has been a high-trust, low-fraud country when it comes to payment card usage. For example, the conventional practice of handing over your credit card (or debit card) to a waiter in a restaurant and having him disappear into a back room with it is something that must strike people in other countries as somewhat bizarre. Nevertheless, we do it all the time and rarely does anything go wrong in this process. So, this makes a difference–in a high-trust, low-fraud country it generally is not necessary to invest in as elaborate security protections as elsewhere. As an analogy, consider that in the U.S. very few restaurants, stores, or hotels routinely post visible armed guards at their front door, whereas this precaution is not uncommon in other countries.

With that background in mind, the WSJ article contains some interesting numbers relative to the optimal level of credit card security.

First, consider the size of the potential dollar size:

But if the chip cards were used in the U.S., fraud losses could be halved, Aite Group estimates. U.S. merchants and banks had 2012 losses of

]]>The WSJ has an interesting article today on the Target credit card security breach. As the article notes, the US card system is less secure than elsewhere in the world, most notably Europe, which has a “chip and PIN” system, which has a computer chip embedded in the card and requires the purchaser to insert a PIN as well to make a transaction. The Target security breach has led many to wonder–and implicitly the WSJ–why the US has lagged on adopting this more secure technology.

Well it turns out that the economics of credit card security is more complicated than it appears at first glance. But first, an important thing to keep in mind: historically the United States has been a high-trust, low-fraud country when it comes to payment card usage. For example, the conventional practice of handing over your credit card (or debit card) to a waiter in a restaurant and having him disappear into a back room with it is something that must strike people in other countries as somewhat bizarre. Nevertheless, we do it all the time and rarely does anything go wrong in this process. So, this makes a difference–in a high-trust, low-fraud country it generally is not necessary to invest in as elaborate security protections as elsewhere. As an analogy, consider that in the U.S. very few restaurants, stores, or hotels routinely post visible armed guards at their front door, whereas this precaution is not uncommon in other countries.

With that background in mind, the WSJ article contains some interesting numbers relative to the optimal level of credit card security.

First, consider the size of the potential dollar size:

But if the chip cards were used in the U.S., fraud losses could be halved, Aite Group estimates. U.S. merchants and banks had 2012 losses of $11.3 billion due to credit-card fraud, or 5 cents on every $100 spent, according to the Nilson Report, a payment-industry newsletter based in Carpinteria, Calif.

So, if that is correct, this obviously means that card issuers would save about $5.65 billion per year from adopting more secure technologies. So there is a strong incentive there to do so. According to the Washington Post, however, the amount saved from adopting more secure payments technologies is only $1.1 billion.

But this doesn’t include a whole bunch of excluded costs, especially the costs to consumers in the time, aggravation, and any out-of-pocket expense of dealing with security breaches and potential follow-on effects such as identity theft.

But there are costs on the other side as well:

A typical large issuer will spend about $1.30 to buy a chip card, compared with 10 cents for a traditional magnetic-stripe card, according to Aite Group.

And according to the article there are “5.6 billion credit and debit cards in circulation in the U.S., only an estimated 15 million to 20 million are chip cards–issued mainly to people who travel overseas frequently.” So, holding all else constant, this would mean that the card issuers would have to replace some 5.4 billion cards at an increased cost of $1.20 per card for a one-time cost of $6.48 billion. So, in the short-run, this is a one-time $6.48 billion expenditure to save some $5.65 billion per year. And so it seems like it would be recovered in a year and a half. The Post story estimates the cost at $8 billion to switch over.

But according to this article by Bankrate, these the cost to produce and distribute a traditional magnetic card to a customer is “under $2.” By contrast, the “cost to make and distribute a chip card to a customer is between $15 and $20,” according to Andi Coleman, a member of the Accredited Standards Committee X9, “which determines the standards for the financial industry in the U.S.”

So, the numbers vary–a lot. But they are big numbers.

But that’s incomplete as well. First, that’s just the cost of issuing the cards. There is a whole other group of costs of upgrading all the technology to accept the cards. As Bankrate also notes:

And don’t expect retailers to be too eager to pay for a switch either, he says.

“You’re telling the merchant that they have to buy a new machine,” says Abagnale. “They’ve already purchased this one machine for $450. If you’re a Kroger store or a Safeway or someone, and you have thousands of these machines, they’re telling you now to go get a new machine.”

Because U.S. laws put most of the onus for paying for fraud on card issuers rather than retailers, says Abagnale, retailers have little incentive to make the steep investment required to implement the change.

So we are talking about huge network costs on all sides of the equation to transition from traditional magnetic stripe cards to chip and PIN. This isn’t to say that the cost and network effects are insurmountable. But it isn’t easy either.

But there is still another factor to consider–traditionally card issuers have essentially issued their cards for free to customers, in the sense that they do not charge you for actually producing, distributing, and activating the card for you. That makes sense if the cost of the card is relatively trivial (a dime or $2 or however we measure it). But what if the cost is higher, as with chip and PIN? Then it is going to be harder to easily absorb those costs.

Moreover, people often use cards for awhile and then switch or they lose their cards and they need to be physically replaced. According to Federal Reserve data that I summarize in this article, in 2009 16.5% of credit card users discarded their cards and 29% of prepaid card users did so. Customer churn is especially high for prepaid card users, who often use their cards for only a short period or for a specified purpose. Churn is lowest for debit cards, because they are linked to bank accounts. But if the cost of issuing cards increases this will mean that issuers will need to recoup these higher fees in some way or another. In fact, one reason why general-purpose prepaid cards cost more to use than other payment systems is because of the need to recoup these fixed costs across a shorter time period and lower transaction volume. If chip and PIN becomes standard, it would be foreseeable that card issuers will begin charging a fee for card issuance or certainly for replacement cards.

Finally, this whole issue of new technology adoption becomes much more complicated when you move from credit cards to debit and prepaid cards. In particular, although the Durbin Amendment to Dodd-Frank supposedly permits a price allowance for “fraud,” it is unclear whether it would permit recovery for the costs of a recall and reissue of new cards with the technology. As Judge Leon emphasized in his opinion invalidating the Federal Reserve’s cost-recovery rule, the Durbin Amendment ties allowable recovery costs very closely to the cost of particular transactions, and it is not clear to what extent it would permit recovery of increased costs from issuing new cards. Moreover, even if investments in card security are recoverable, they are capped under the Durbin Amendment at one cent per transaction under 12 CFR 235.4(a). Indeed, I argued some time ago that one unintended consequence of the Durbin Amendment became effective that it would likely discourage investments in card security and other features (such as processing speed) by making it more difficult for issuers to recoup those costs.

So in the wake of the Target debacle, there appears to be an emerging belief that merchants and issuers have dragged their feet on increasing card security. In fact, the issue is much more complicated than that and has to do not only with whether the benefits of the transition (in the U.S.) exceed the costs, but also who bears the transitional and going-concern costs. Not to mention a healthy dose of special-interest politics involving the Durbin Amendment.

]]>http://volokh.com/2014/01/21/economics-credit-card-security/feed/0Brief Review of Takeover: The Return of the Imperial Presidency and the Subversion of American Democracyhttp://volokh.com/2014/01/21/brief-review-takeover-return-imperial-presidency-subversion-american-democracy/
http://volokh.com/2014/01/21/brief-review-takeover-return-imperial-presidency-subversion-american-democracy/#commentsTue, 21 Jan 2014 14:06:48 +0000http://volokh.com/?p=80623This book, by journalist Charlie Savage was published six years ago, but I just finished it. It’s a well-written, well-researched critique of the George W. Bush’s Administration’s abuse of executive power based on often extremely dubious constitutional theories. If you’re interested in the subject matter, it’s well worth reading, despite its age. Of particular interest to many VC readers is that he traces the intellectual origins of the Bush Administration’s broad assertions of executive power back to (mostly) young conservative lawyers who worked in the Reagan Administration.

I have a few qualms about the book. Most important, for a book that’s all about executive power, you’d hope the author would master what the theory of the unitary executive means, and wouldn’t, as so many Bush Administration critics did, confuse that theory with other issues. Savage, unfortunately, fails that test repeatedly.

Savage also sometimes overstates his case, especially later in the book. For example, Savage notes that Bush issued signing statements indicating that the Administration would decline, for constitutional reasons, to enforce affirmative action preferences in government employment dictated by statute. Savage claims that Bush did so despite the Supreme Court’s holding in Grutter that affirmative actions preferences are constitutionally permissible. Savage indicts the administration for ignoring Grutter in favor of its own interpretation of the Constitution. In fact, Grutter only held that preferences in higher education are permissible. While some scholars think that Grutter’s logic can be applied to employment (I’m not one of them), Grutter didn’t purport to overrule cases unfavorable to preferences, in particular the Adarand case, banning preferences in government contracting. In this instance, I think Bush had the better of the constitutional argument based on Supreme Court precedent, but at the very least Savage significantly overstated the case that Bush was acting lawlessly.

]]>This book, by journalist Charlie Savage was published six years ago, but I just finished it. It’s a well-written, well-researched critique of the George W. Bush’s Administration’s abuse of executive power based on often extremely dubious constitutional theories. If you’re interested in the subject matter, it’s well worth reading, despite its age. Of particular interest to many VC readers is that he traces the intellectual origins of the Bush Administration’s broad assertions of executive power back to (mostly) young conservative lawyers who worked in the Reagan Administration.

I have a few qualms about the book. Most important, for a book that’s all about executive power, you’d hope the author would master what the theory of the unitary executive means, and wouldn’t, as so many Bush Administration critics did, confuse that theory with other issues. Savage, unfortunately, fails that test repeatedly.

Savage also sometimes overstates his case, especially later in the book. For example, Savage notes that Bush issued signing statements indicating that the Administration would decline, for constitutional reasons, to enforce affirmative action preferences in government employment dictated by statute. Savage claims that Bush did so despite the Supreme Court’s holding in Grutter that affirmative actions preferences are constitutionally permissible. Savage indicts the administration for ignoring Grutter in favor of its own interpretation of the Constitution. In fact, Grutter only held that preferences in higher education are permissible. While some scholars think that Grutter’s logic can be applied to employment (I’m not one of them), Grutter didn’t purport to overrule cases unfavorable to preferences, in particular the Adarand case, banning preferences in government contracting. In this instance, I think Bush had the better of the constitutional argument based on Supreme Court precedent, but at the very least Savage significantly overstated the case that Bush was acting lawlessly.

And some errors crept in. For example, Savage writes that before 1937, a bloc of Supreme Court Justices “kept striking down minimum wage, work-week, and child-labor laws on the grounds that the Constitution has an unwritten right to contract for one’s labor one might see fit.” In fact, the Court never invalidated a child labor law on such grounds, and invalidated only one work-week law (Lochner), while upholding about a dozen other hours laws.

All of which to say that I recommend the book, but I spotted enough overstatements and errors that I would not rely on any particular factual statements in the book without independent verification.

UPDATE: Charlie Savage responds in the comments, and I respond to his response.

]]>http://volokh.com/2014/01/21/brief-review-takeover-return-imperial-presidency-subversion-american-democracy/feed/0Canadian Prime Minister Harper on Israelhttp://volokh.com/2014/01/20/canadian-prime-minister-harper-israel/
http://volokh.com/2014/01/20/canadian-prime-minister-harper-israel/#commentsMon, 20 Jan 2014 19:28:06 +0000http://volokh.com/?p=80620I think President Obama has been better to Israel than his critics acknowledge, and has been very pro-Israel by any standard except perhaps that of the prior two presidents, who were the most pro-Israel of any American presidents. But it’s hard to imagine him giving a speech like this:

“It is a Canadian tradition to stand for what is principled and just, regardless of whether it is convenient or popular,” he said to the Israeli parliament.

But “support today for the Jewish state of Israel is more than a moral imperative. It is also of strategic importance, also a matter of our own long-term interests,” he elaborated, praising Israel’s record on human rights and economic freedom. “Israel is the only country in the Middle East which has long anchored itself in the ideals of freedom, democracy and the rule of law. These are not mere notions. They are the things that, over time and against all odds, have proven to be the only ground in which human rights, political stability, and economic prosperity, may flourish. These values are not proprietary; they do not belong to one nation or one people. Nor are they a finite resource; on the contrary, the wider they are spread, the stronger they grow.”

“Likewise, when they are threatened anywhere, they are threatened everywhere,” Harper continued. And “what today threatens the societies that embrace such values and the progress they nurture? Those who scorn modernity, who loathe the liberty of others, and who hold the differences of peoples and cultures in contempt. Those who often begin by hating the Jews, but, history shows us, end up hating anyone who is not them. Those forces which have threatened the State of Israel every single day of its existence, and which, today, as 9-11 graphically showed us, [...]

]]>I think President Obama has been better to Israel than his critics acknowledge, and has been very pro-Israel by any standard except perhaps that of the prior two presidents, who were the most pro-Israel of any American presidents. But it’s hard to imagine him giving a speech like this:

“It is a Canadian tradition to stand for what is principled and just, regardless of whether it is convenient or popular,” he said to the Israeli parliament.

But “support today for the Jewish state of Israel is more than a moral imperative. It is also of strategic importance, also a matter of our own long-term interests,” he elaborated, praising Israel’s record on human rights and economic freedom. “Israel is the only country in the Middle East which has long anchored itself in the ideals of freedom, democracy and the rule of law. These are not mere notions. They are the things that, over time and against all odds, have proven to be the only ground in which human rights, political stability, and economic prosperity, may flourish. These values are not proprietary; they do not belong to one nation or one people. Nor are they a finite resource; on the contrary, the wider they are spread, the stronger they grow.”

“Likewise, when they are threatened anywhere, they are threatened everywhere,” Harper continued. And “what today threatens the societies that embrace such values and the progress they nurture? Those who scorn modernity, who loathe the liberty of others, and who hold the differences of peoples and cultures in contempt. Those who often begin by hating the Jews, but, history shows us, end up hating anyone who is not them. Those forces which have threatened the State of Israel every single day of its existence, and which, today, as 9-11 graphically showed us, threaten us all… And so, either we stand up for our values and our interests, here, in Israel, stand up for the existence of a free, democratic and distinctively Jewish state, or the retreat of our values and our interests in the world will begin.”

“Most disgracefully of all, some openly call Israel an apartheid state,” Harper said. “Think about that. Think about the twisted logic and outright malice behind that: A state, based on freedom, democracy and the rule of law, that was founded so Jews can flourish, as Jews, and seek shelter from the shadow of the worst racist experiment in history, that is condemned, and that condemnation is masked in the language of anti-racism. It is nothing short of sickening.”

]]>http://volokh.com/2014/01/20/canadian-prime-minister-harper-israel/feed/0Some Upcoming Speaking Engagementshttp://volokh.com/2014/01/20/upcoming-speaking-engagements/
http://volokh.com/2014/01/20/upcoming-speaking-engagements/#commentsMon, 20 Jan 2014 19:13:08 +0000http://volokh.com/?p=80618Here are some speaking engagements I will be doing in the next two weeks:

Thursday, January 22: I will be delivering the annual Brennan Lecture at Oklahoma City University. My topic (picked because it interested the organizers) is “NFIB v. Sebelius and the Constitutional Debate Over Federalism.” Perhaps Justice William Brennan would turn over in his grave if he knew that I was giving this lecture. There are important areas of agreement between us, but probably not on this issue. On the other hand, he might already have turned over when co-blogger Randy Barnett delivered a previous lecture in the series in 2004 (the list of past speakers also includes many people closer to Brennan’s views).

]]>Here are some speaking engagements I will be doing in the next two weeks:

Thursday, January 22: I will be delivering the annual Brennan Lecture at Oklahoma City University. My topic (picked because it interested the organizers) is “NFIB v. Sebelius and the Constitutional Debate Over Federalism.” Perhaps Justice William Brennan would turn over in his grave if he knew that I was giving this lecture. There are important areas of agreement between us, but probably not on this issue. On the other hand, he might already have turned over when co-blogger Randy Barnett delivered a previous lecture in the series in 2004 (the list of past speakers also includes many people closer to Brennan’s views).

]]>http://volokh.com/2014/01/20/upcoming-speaking-engagements/feed/0Immigration and Political Freedomhttp://volokh.com/2014/01/20/immigration-political-freedom/
http://volokh.com/2014/01/20/immigration-political-freedom/#commentsMon, 20 Jan 2014 19:04:23 +0000http://volokh.com/?p=80617I recently wrote a guest post for the Open Borders blog on migration and political freedom. The connection between the two is often ignored in debates over immigration policy. Here’s an excerpt:

There is widespread agreement that political freedom is a fundamental human right – that everyone is entitled to substantial freedom of choice in deciding what type of government policies they will live under. This is one of the main justifications for democracy. Voting enables the people to exercise political choice. But the principle of political freedom also has implications for international migration. The same logic that justifies giving people a right vote at the ballot box also implies that they should have a right to vote with their feet. This is particularly true of people living under authoritarian governments, where foot voting is often the only feasible way of exercising any political choice at all. But even for those fortunate enough to live under a democracy, the right to migrate elsewhere is an important aspect of political freedom. In both cases, obviously, the right to emigrate is of little value unless there is also a right to immigrate to some other nation….

Although the democracy has spread rapidly in recent decades, the majority of the world’s population still live in undemocratic states….

Residents of many authoritarian nations can exercise political freedom only through international migration or not at all. If developed democracies refuse admission to migrants from such countries, they effectively deprive them of their political freedom. They therefore become complicit in violating a fundamental human right. One can object that Westerners are not responsible for the lack of democracy in many Third World nations. But as philosopher Michael Huemer explains, immigration restrictions don’t merely leave in place poor conditions created by others. They involve the active use

]]>I recently wrote a guest post for the Open Borders blog on migration and political freedom. The connection between the two is often ignored in debates over immigration policy. Here’s an excerpt:

There is widespread agreement that political freedom is a fundamental human right – that everyone is entitled to substantial freedom of choice in deciding what type of government policies they will live under. This is one of the main justifications for democracy. Voting enables the people to exercise political choice. But the principle of political freedom also has implications for international migration. The same logic that justifies giving people a right vote at the ballot box also implies that they should have a right to vote with their feet. This is particularly true of people living under authoritarian governments, where foot voting is often the only feasible way of exercising any political choice at all. But even for those fortunate enough to live under a democracy, the right to migrate elsewhere is an important aspect of political freedom. In both cases, obviously, the right to emigrate is of little value unless there is also a right to immigrate to some other nation….

Although the democracy has spread rapidly in recent decades, the majority of the world’s population still live in undemocratic states….

Residents of many authoritarian nations can exercise political freedom only through international migration or not at all. If developed democracies refuse admission to migrants from such countries, they effectively deprive them of their political freedom. They therefore become complicit in violating a fundamental human right. One can object that Westerners are not responsible for the lack of democracy in many Third World nations. But as philosopher Michael Huemer explains, immigration restrictions don’t merely leave in place poor conditions created by others. They involve the active use of force to prevent people from bettering their condition through voluntary transactions. If I forcibly prevent a starving man from purchasing food, I bear moral responsibility for his resulting death, even if it is not my fault that he was starving in the first place. Similarly, those who use force to prevent the exercise of political freedom through migration are partially responsible for would-be immigrants’ political oppression, even if they had nothing to do with establishing undemocratic governments in the migrants’ homelands.

I discuss the connection between migration and political freedom in greater detail in this article. Last year, I did another guest post for Open Borders on immigration and the US Constitution.

For those who may be interested, the Open Borders website has possibly the most extensive compilation of arguments for and against immigration restrictions anywhere on the internet – ranging from the most mainstream to the very obscure.

]]>http://volokh.com/2014/01/20/immigration-political-freedom/feed/0Was a Scientific Journal Canned for Disagreeing with the IPCC?http://volokh.com/2014/01/20/scientific-journal-canned-disagreeing-ipcc/
http://volokh.com/2014/01/20/scientific-journal-canned-disagreeing-ipcc/#commentsMon, 20 Jan 2014 17:51:51 +0000http://volokh.com/?p=80615Copernicus Publications, “the innovative open access publisher,” recently announced it was terminating one of its journals, Pattern Recognition in Physicsdue to concerns about the journal’s editorial practices. PRP was not even one year old. It seems the problems began when the journal’s editors agreed to a special issue on “Pattern in solar variability, their planetary origin and terrestrial impacts,” in which the issue’s editors had the temerity to “doubt the continued, even accelerated, warming as claimed by the IPCC project.”[*]According to the original explanation offered by Martin Rasmussen of Copernicus Publications, as reported by JoNova, the expression of this conclusion was a motivating factor for the “drastic decision” to terminate a journal. A letter to one of the editors also expressed “alarm” that a paper in PRP would question the IPCC.

If Copernicus indeed shuttered a journal because of disagreement with the conclusions expressed in a published paper, it would be quite shameful. But is that what happened? In a revised statement, Rasmussen notes “the editors selected the referees on a nepotistic basis, which we regard as malpractice in scientific publishing and not in accordance with our publication ethics we expect to be followed by the editors.” Whatever the merits of the papers at issue (and even some climate skeptics were unimpressed), it appears that PRP did violate accepted peer review norms in producing the special issue — as Anthony Watts details here — and concerns were raised about the journal last year. So it appears Copernicus did have sufficient grounds to reconsider its production of PRP. Given the wording of Rasmussen’s initial statement, however, questions remain about what prompted the publisher’s decision.

[* The IPCC is the Intergovernmental Panel on Climate Change, a UN-sponsored, intergovernmental entity that produces periodic reports on climate change.]

]]>Copernicus Publications, “the innovative open access publisher,” recently announced it was terminating one of its journals, Pattern Recognition in Physicsdue to concerns about the journal’s editorial practices. PRP was not even one year old. It seems the problems began when the journal’s editors agreed to a special issue on “Pattern in solar variability, their planetary origin and terrestrial impacts,” in which the issue’s editors had the temerity to “doubt the continued, even accelerated, warming as claimed by the IPCC project.”[*]According to the original explanation offered by Martin Rasmussen of Copernicus Publications, as reported by JoNova, the expression of this conclusion was a motivating factor for the “drastic decision” to terminate a journal. A letter to one of the editors also expressed “alarm” that a paper in PRP would question the IPCC.

If Copernicus indeed shuttered a journal because of disagreement with the conclusions expressed in a published paper, it would be quite shameful. But is that what happened? In a revised statement, Rasmussen notes “the editors selected the referees on a nepotistic basis, which we regard as malpractice in scientific publishing and not in accordance with our publication ethics we expect to be followed by the editors.” Whatever the merits of the papers at issue (and even some climate skeptics were unimpressed), it appears that PRP did violate accepted peer review norms in producing the special issue — as Anthony Watts details here — and concerns were raised about the journal last year. So it appears Copernicus did have sufficient grounds to reconsider its production of PRP. Given the wording of Rasmussen’s initial statement, however, questions remain about what prompted the publisher’s decision.

[* The IPCC is the Intergovernmental Panel on Climate Change, a UN-sponsored, intergovernmental entity that produces periodic reports on climate change.]

]]>http://volokh.com/2014/01/20/scientific-journal-canned-disagreeing-ipcc/feed/0The Pot Bowlhttp://volokh.com/2014/01/20/pot-bowl/
http://volokh.com/2014/01/20/pot-bowl/#commentsMon, 20 Jan 2014 06:16:45 +0000http://volokh.com/?p=80614It is perhaps worth mentioning that the two teams that made it to the Super Bowl on Sunday represent Colorado and Washington – the two states that recently legalized marijuana. If this somehow helps accelerate the recent decline in public support for the War on Drugs, it will almost be enough to offset my disappointment over the Patriots and Tom Brady losing to longtime rival Peyton Manning. [...]

]]>It is perhaps worth mentioning that the two teams that made it to the Super Bowl on Sunday represent Colorado and Washington – the two states that recently legalized marijuana. If this somehow helps accelerate the recent decline in public support for the War on Drugs, it will almost be enough to offset my disappointment over the Patriots and Tom Brady losing to longtime rival Peyton Manning.

]]>http://volokh.com/2014/01/20/pot-bowl/feed/0Thanks for Help with Obsidian Finance v. Coxhttp://volokh.com/2014/01/19/thanks-many-people-helped-obsidian-finance-v-cox/
http://volokh.com/2014/01/19/thanks-many-people-helped-obsidian-finance-v-cox/#commentsMon, 20 Jan 2014 01:57:46 +0000http://volokh.com/?p=80596I just wanted to thank the many people who helped me with Obsidian Finance v. Cox:

A Germantown mother and another woman accused of killing two toddlers and trying to kill two other children believed that they were releasing demonic spirits that had possessed the siblings, Montgomery County police said Saturday.

The two dead children — a boy, Norell Harris, 1, and a girl, Zyana Harris, 2 — were found Friday morning on their mother’s bed in a Germantown townhouse. Both had been stabbed repeatedly, police said. A sister, Taniya Harris, 5, and a brother, Martello Harris, 8, were seriously injured but are expected to survive.

Police said the women thought that they were performing an exorcism, although it did not appear they had followed any ritual….

Police identified the women as Zakieya L. Avery, 28, the mother, and Monifa Sanford, 21, who lived with the family. Each has been charged with two counts of first-degree murder and two counts of attempted first-degree murder….

Avery, who has received mental health counseling, moved twice in recent years — from Western Maryland to Ohio and then to Montgomery, according to a minister whose church she attended. A relative said she had separated from her husband. Writings on her Facebook page suggest that she believes in God and fears Satan….

In the townhouse community where Avery lived … at least one neighbor saw signs of possible trouble Thursday night. He spotted a child alone in a parked car and called 911, police said. As officers were on the way, two women came out of Avery’s townhouse, told the neighbor to mind his own business, took the child and went back into the home, police said.

When officers arrived, they knocked on Avery’s door but got no response. They didn’t hear or see anything suspicious

A Germantown mother and another woman accused of killing two toddlers and trying to kill two other children believed that they were releasing demonic spirits that had possessed the siblings, Montgomery County police said Saturday.

The two dead children — a boy, Norell Harris, 1, and a girl, Zyana Harris, 2 — were found Friday morning on their mother’s bed in a Germantown townhouse. Both had been stabbed repeatedly, police said. A sister, Taniya Harris, 5, and a brother, Martello Harris, 8, were seriously injured but are expected to survive.

Police said the women thought that they were performing an exorcism, although it did not appear they had followed any ritual….

Police identified the women as Zakieya L. Avery, 28, the mother, and Monifa Sanford, 21, who lived with the family. Each has been charged with two counts of first-degree murder and two counts of attempted first-degree murder….

Avery, who has received mental health counseling, moved twice in recent years — from Western Maryland to Ohio and then to Montgomery, according to a minister whose church she attended. A relative said she had separated from her husband. Writings on her Facebook page suggest that she believes in God and fears Satan….

In the townhouse community where Avery lived … at least one neighbor saw signs of possible trouble Thursday night. He spotted a child alone in a parked car and called 911, police said. As officers were on the way, two women came out of Avery’s townhouse, told the neighbor to mind his own business, took the child and went back into the home, police said.

When officers arrived, they knocked on Avery’s door but got no response. They didn’t hear or see anything suspicious and — after calling the county’s child welfare agency, where someone said the agency would follow up on Friday — they eventually left.

A man who created a Facebook page poking fun at a revered Greek Orthodox monk has been sentenced to 10 months in prison in Greece after being found guilty of blasphemy…. Filippos Loizos, 28, … used a play on words to portray Father Paisios as a traditional pasta-based dish [pastitsio -EV] ….

Father Paisios, who was revered for his spiritual teachings and was said by some believers to have powers of prophecy, died in 1994.

Loizos had appealed against the ruling and would not be jailed before his case was heard by a higher court, Kleftodimos said.

Here’s what seems to be a copy of the Facebook page:

A reminder that blasphemy prosecutions are, unfortunately, not entirely a thing of the past in Europe. Thanks to Bill Poser for the pointer. [...]

A man who created a Facebook page poking fun at a revered Greek Orthodox monk has been sentenced to 10 months in prison in Greece after being found guilty of blasphemy…. Filippos Loizos, 28, … used a play on words to portray Father Paisios as a traditional pasta-based dish [pastitsio -EV] ….

Father Paisios, who was revered for his spiritual teachings and was said by some believers to have powers of prophecy, died in 1994.

Loizos had appealed against the ruling and would not be jailed before his case was heard by a higher court, Kleftodimos said.

Here’s what seems to be a copy of the Facebook page:

A reminder that blasphemy prosecutions are, unfortunately, not entirely a thing of the past in Europe. Thanks to Bill Poser for the pointer.

]]>http://volokh.com/2014/01/19/prison-blasphemy/feed/0Thanks And Farewell For Nowhttp://volokh.com/2014/01/19/thanks-farewell-now/
http://volokh.com/2014/01/19/thanks-farewell-now/#commentsMon, 20 Jan 2014 00:42:34 +0000http://volokh.com/?p=80517My thanks again to the VC for lending me the podium this week to talk about The Conscience of The Constitution. I hope you’ll join me—in person or online—on January 30, when I speak about the book at the Cato Institute’s book forum. Then I’ll be participating in February’s Cato Unbound to discuss the debate over “judicial activism” (which takes up chapter 5 of my book).

Please also bookmark the Pacific Legal Foundation’s Liberty Blog to follow our litigation in defense of economic liberty and other constitutional rights across the country—including our ongoing challenges to Obamacare, subject of the cover article in this issue of Regulation. Andmy personal blog is Freespace, where I write on various subjects of interest. You can also follow me on Twitter @TimothySandefur. [...]

Please also bookmark the Pacific Legal Foundation’s Liberty Blog to follow our litigation in defense of economic liberty and other constitutional rights across the country—including our ongoing challenges to Obamacare, subject of the cover article in this issue of Regulation. Andmy personal blog is Freespace, where I write on various subjects of interest. You can also follow me on Twitter @TimothySandefur.

IPAB is an agency created by Obamacare to regulate Medicare reimbursement rates. This group of bureaucrats is required by the statute to promulgate “recommendations” as to how to reduce Medicare costs—except that those “recommendations” go into effect automatically, without Congressional or Presidential approval. On the contrary, the law specifically forbids Congress or the President from altering these “recommendations” (except in one limited sense: Congress can replace those “recommendations” with new ones, so long as they achieve the same reductions as the originals.) And Obamacare even attempts to make IPAB immune to repeal. It allows Congress to abolish the agency only by passing a joint resolution during a narrow one-month window in 2017—and that resolution must receive the most extreme supermajority ever required in American law. Courts are prohibited from reviewing IPAB’s actions, also. In short, IPAB is an autonomous lawmaking body that operates without Presidential, Congressional, or Judicial checks or balances.*

Given its extreme degree of independence from popular control, it’s not surprising that opponents of the law labeled IPAB a “death panel.” The law’s defenders called that an exaggeration because the law expressly forbids IPAB from “rationing care.” But the law also doesn’t define what “rationing care” means—and since IPAB’s actions are immune from judicial review, it’s hard to see how courts could stop it from doing so. [...]

IPAB is an agency created by Obamacare to regulate Medicare reimbursement rates. This group of bureaucrats is required by the statute to promulgate “recommendations” as to how to reduce Medicare costs—except that those “recommendations” go into effect automatically, without Congressional or Presidential approval. On the contrary, the law specifically forbids Congress or the President from altering these “recommendations” (except in one limited sense: Congress can replace those “recommendations” with new ones, so long as they achieve the same reductions as the originals.) And Obamacare even attempts to make IPAB immune to repeal. It allows Congress to abolish the agency only by passing a joint resolution during a narrow one-month window in 2017—and that resolution must receive the most extreme supermajority ever required in American law. Courts are prohibited from reviewing IPAB’s actions, also. In short, IPAB is an autonomous lawmaking body that operates without Presidential, Congressional, or Judicial checks or balances.*

Given its extreme degree of independence from popular control, it’s not surprising that opponents of the law labeled IPAB a “death panel.” The law’s defenders called that an exaggeration because the law expressly forbids IPAB from “rationing care.” But the law also doesn’t define what “rationing care” means—and since IPAB’s actions are immune from judicial review, it’s hard to see how courts could stop it from doing so. And cutting the Medicare reimbursement rate for some procedure or other to $0, as IPAB is free to do, would certainly qualify as rationing care. The statutory ban on rationing is simply not enforceable.

Sadly, IPAB is only the latest example of the increasing danger of administrative agency control over our lives. Although advocates of “judicial restraint” insist that various matters should be left to the “democratic process” instead of being determined by courts, the fact is that most of the laws under which we live our lives are not written by elected officials—they’re written by hired bureaucrats in administrative agencies that are purposely insulated against control by the voters. This allows elected officials to retain power and public prestige while avoiding responsibility for actual governing outcomes.

A candidate runs for office by saying he’s opposed to some Bad Thing or other. Since everyone’s against Bad Things, they reward his brave stand by electing him to office. He then oversees passage of the No Bad Things Act of 2014. This Act consists of two sentences: “1) There shall be no more Bad Things. 2) There is established a No Bad Things Agency which shall define what a Bad Thing is, investigate alleged Bad Things, and prosecute Bad Things.” And then the candidate proclaims victory and moves on to the next public controversy. Meanwhile, the bureaucrats get to work—combining executive, judicial, and legislative authority and acting with minimal oversight, no accountability, and every incentive to expand their own jurisdiction as far as possible. That’s why Hannah Arendt called bureaucracy “rule by Nobody…tyranny without a tyrant.”

Remarkably, these autocratic agencies are not treated with skepticism by the courts, as one might expect if the will of the people were really such an important value. Instead, courts accord these agencies deference, on the grounds that the agencies are staffed by experts who can be trusted to make wise, informed decisions, and that the legislature—which has little incentive to do so—can rein in an agency that goes too far. It’s not just judicial deference to agency interpretations of statutes, either—it’s deference to their fact-finding. These layers of deference allow agencies to subvert the ordinary legal process, since agencies are allowed to base their factual findings on speculation, guesswork, and hearsay, and courts often refuse even to allow a person to introduce contrary evidence when appealing an administrative decision. Meanwhile, agencies know that they can delay their decisions, or bring unjust economic and legal pressure, or play various political games, in order to twist the arms of citizens, who rarely have the resources to take on a giant bureaucracy, until they yield to the agency’s will.

The result of rule by administrative agency is the betrayal of the principles of limited, divided government on which the Constitution was founded—and the creation of an unaccountable, and unrestrained, ruler who presumes against individual liberty and requires the citizen to get permission from the state before he may act.

[b]y reason of today’s decision, I anticipate that Congress will find delegation of its lawmaking powers much more attractive in the future. If rulemaking can be entirely unrelated to the exercise of judicial or executive powers, I foresee all manner of “expert” bodies, insulated from the political process, to which Congress will delegate various portions of its lawmaking responsibility. How tempting to create an expert Medical Commission (mostly M.D.’s, with perhaps a few Ph.D.’s in moral philosophy) to dispose of such thorny, “no-win” political issues as the withholding of life-support systems in federally funded hospitals, or the use of fetal tissue for research. This is an undemocratic precedent that we set….

*–As President Obama has not made any appointments to IPAB (knowing they wouldn’t get confirmed), the statute provides that IPAB’s powers will instead be vested not in a group of bureaucrats, but in the hands of a single bureaucrat: our capable Health & Human Services Secretary, Kathleen Sebelius, who recently said, and correctly, that she “doesn’t work for” the American people.

Disclosure: The case will be argued by my wife, Christina Sandefur, who contributed to this post.

]]>http://volokh.com/2014/01/19/ninth-circuit-hear-challenge-obamacares-platonic-guardians-january-28/feed/0Upcoming Talkshttp://volokh.com/2014/01/19/upcoming-talks-12/
http://volokh.com/2014/01/19/upcoming-talks-12/#commentsSun, 19 Jan 2014 21:06:34 +0000http://volokh.com/?p=80608I have a few upcoming talks that are open to the public and may be of interest to VC readers.

On January 21, at noon, I will be speaking at the National Constitution Center’s “Affordable Care Act Town Hall” with Simon Lazarus of the Constitutional Accountability Center. Jeff Rosen will moderate our discussion of continuing legal controversies surrounding the ACA and its implementation. This podcast offers a bit of a preview. Registration details here.

On January 30, at noon, I will be speaking on ACA implementation before the Cleveland Lawyers Chapter of the Federalist Society. Details to follow.

On January 31, at noon, I will be speaking on “The Conspiracy Against Obamacare: How Academic Bloggers Influenced the Legal Battle Over the Individual Mandate” at the Public Affairs Discussion Group, sponsored by the Center for Policy Studies at CWRU.

]]>I have a few upcoming talks that are open to the public and may be of interest to VC readers.

On January 21, at noon, I will be speaking at the National Constitution Center’s “Affordable Care Act Town Hall” with Simon Lazarus of the Constitutional Accountability Center. Jeff Rosen will moderate our discussion of continuing legal controversies surrounding the ACA and its implementation. This podcast offers a bit of a preview. Registration details here.

On January 30, at noon, I will be speaking on ACA implementation before the Cleveland Lawyers Chapter of the Federalist Society. Details to follow.

On January 31, at noon, I will be speaking on “The Conspiracy Against Obamacare: How Academic Bloggers Influenced the Legal Battle Over the Individual Mandate” at the Public Affairs Discussion Group, sponsored by the Center for Policy Studies at CWRU.

]]>http://volokh.com/2014/01/19/upcoming-talks-12/feed/0Lawyers for Victims of WWII Internment of Japanese-Americans Urge Overruling of Korematsuhttp://volokh.com/2014/01/19/lawyers-victims-wwii-internment-japanese-americans-urge-overruling-korematsu/
http://volokh.com/2014/01/19/lawyers-victims-wwii-internment-japanese-americans-urge-overruling-korematsu/#commentsSun, 19 Jan 2014 16:30:51 +0000http://volokh.com/?p=80602At SCOTUSblog, Lyle Denniston has an interesting post on an effort by lawyers who represented Fred Korematsu and other victims of the internment of Japanese-Americans during World War II to persuade the Obama administration to advocate the overruling of Korematsu v. United States, the notorious 1944 Supreme Court decision that upheld the forcible internment of over 100,000 Japanese-Americans during World War II [HT: GMU law student Rebecca Bucchieri]:

Lawyers who worked for years — ultimately successfully — to clear the names of U.S. citizens of Japanese ancestry who were convicted of violating government detention policy during World War II are trying to persuade the Obama administration to join in wiping off the books the Supreme Court rulings of that time, upholding those detentions. The most famous of those rulings – often reviled – was the 1944 decision in Korematsu v. United States.

The lawyers did so in a letter last week to U.S. Solicitor General Donald B. Verrilli, Jr., attempting to shape the government’s response to a new Supreme Court appeal that attacks the Korematsu decision. They want the government to formally repudiate that precedent, and tell the Court that it is no part of the justification today for detention of U.S. citizens during the war on terrorism.

The new case is Hedges v. Obama (docket 13-758), an attempt to revive a constitutional challenge to Congress’s recent support of presidential power to detain suspected terrorists….

While Congress was debating that measure, a controversy arose over how far it would go, if at all, to permit the detention without trial of U.S. citizens captured inside the U.S. In a compromise effort to resolve that dispute, Congress included a statement that now seems ambiguous about what was intended. In the Hedges case, the claim is that the statement can be

]]>At SCOTUSblog, Lyle Denniston has an interesting post on an effort by lawyers who represented Fred Korematsu and other victims of the internment of Japanese-Americans during World War II to persuade the Obama administration to advocate the overruling of Korematsu v. United States, the notorious 1944 Supreme Court decision that upheld the forcible internment of over 100,000 Japanese-Americans during World War II [HT: GMU law student Rebecca Bucchieri]:

Lawyers who worked for years — ultimately successfully — to clear the names of U.S. citizens of Japanese ancestry who were convicted of violating government detention policy during World War II are trying to persuade the Obama administration to join in wiping off the books the Supreme Court rulings of that time, upholding those detentions. The most famous of those rulings – often reviled – was the 1944 decision in Korematsu v. United States.

The lawyers did so in a letter last week to U.S. Solicitor General Donald B. Verrilli, Jr., attempting to shape the government’s response to a new Supreme Court appeal that attacks the Korematsu decision. They want the government to formally repudiate that precedent, and tell the Court that it is no part of the justification today for detention of U.S. citizens during the war on terrorism.

The new case is Hedges v. Obama (docket 13-758), an attempt to revive a constitutional challenge to Congress’s recent support of presidential power to detain suspected terrorists….

While Congress was debating that measure, a controversy arose over how far it would go, if at all, to permit the detention without trial of U.S. citizens captured inside the U.S. In a compromise effort to resolve that dispute, Congress included a statement that now seems ambiguous about what was intended. In the Hedges case, the claim is that the statement can be read to rely upon the Korematsu decision as support for such detentions — something that those challengers want to have clearly refuted.

Here is the language of the compromise provision: “Authorities. — Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.”

What concerns the challengers in the Hedges case, and the lawyers who wrote to the Solicitor General, is the phrase “existing law or authorities.” In the petition in the Supreme Court seeking review of the Second Circuit’s decision, this was included as one of the questions at issue: “To the extent that the Second Circuit opinion holds that Koremasu is among the ‘existing law and authorities’…that relate to military detention of citizens and legal residents, should Korematsu be overruled?”

Although Korematsu is one of the most widely reviled decisions in Supreme Court history, it has never been formally overruled, and therefore could potentially be included among the “existing law or authorities” referred to by the 2011 statute.

I discussed the case for overruling or repudiating Korematsu and the other WWII-era Japanese internment decisions in this post, where I also noted that such an overruling can potentially take several different possible forms. Overruling Korematsu would not necessarily deprive the president of all authority to detain suspected enemy combatants, spies, and terrorists without trial. What made that decision so egregious was not just that the Japanese-Americans were detained, but that the detention was undertaken purely on the basis of race without any individualized evidence of guilt, that it was on such a massive scale, and that it went on for over three years. In addition, there is extensive evidence that the internment decision was motivated at least as much by racism as by genuine security concerns. If all that isn’t enough to qualify as an unconstitutional abuse of wartime executive power, it’s difficult to imagine what is. We can legitimately debate the extent to which the executive should have the power to order less drastic forms of internment in wartime. But it is long past time for the Court to repudiate Korematsu.

]]>http://volokh.com/2014/01/19/lawyers-victims-wwii-internment-japanese-americans-urge-overruling-korematsu/feed/0Kentucky’s War On The Little Guy…And Nevada’s…and Missouri’s…http://volokh.com/2014/01/18/kentuckys-war-little-guy/
http://volokh.com/2014/01/18/kentuckys-war-little-guy/#commentsSun, 19 Jan 2014 04:10:55 +0000http://volokh.com/?p=80601Sunday at 10pm Eastern, Fox News will be rebroadcasting John Stossel’s special, War On The Little Guy, which includes a segment about my lawsuit on behalf of Kentucky entrepreneur Raleigh Bruner.

Some years ago, Raleigh started a moving business in Lexington called Wildcat Moving. What he didn’t know was that if you want to start a moving company in Kentucky, the law requires you to basically get permission from all of the state’s existing moving companies.

The law, called a Certificate of Necessity or CON law, works this way: to run a moving company, you need a license. But when you apply for a license, the law requires you to notify all the state’s moving companies and give them the chance to file an objection. And when an objection is filed, you have to go to a hearing and prove to the government that “existing moving services are inadequate,” and that a new moving company would be consistent with the “present or future public convenience and necessity.” What do these phrases mean? Nobody really knows. In fact, the chief lawyer for the state’s Transportation Cabinet testified under oath that there are “no objective criteria” for deciding what services are “inadequate.” And it’s hard to imagine how bureaucrats can predict “future public convenience.”

But one thing is clear: the law gives bureaucrats almost unlimited power to decide who can and who cannot run a moving business. In the past five years, there have been 39 applications for new moving licenses. Of those, 19 were subjected to protests by one or more existing moving companies, giving a total of 114 protests. You can see an example of a protest here. Note that it doesn’t even suggest that the applicant is unqualified or unsafe or untrustworthy. That’s typical; in fact, since [...]

Some years ago, Raleigh started a moving business in Lexington called Wildcat Moving. What he didn’t know was that if you want to start a moving company in Kentucky, the law requires you to basically get permission from all of the state’s existing moving companies.

The law, called a Certificate of Necessity or CON law, works this way: to run a moving company, you need a license. But when you apply for a license, the law requires you to notify all the state’s moving companies and give them the chance to file an objection. And when an objection is filed, you have to go to a hearing and prove to the government that “existing moving services are inadequate,” and that a new moving company would be consistent with the “present or future public convenience and necessity.” What do these phrases mean? Nobody really knows. In fact, the chief lawyer for the state’s Transportation Cabinet testified under oath that there are “no objective criteria” for deciding what services are “inadequate.” And it’s hard to imagine how bureaucrats can predict “future public convenience.”

But one thing is clear: the law gives bureaucrats almost unlimited power to decide who can and who cannot run a moving business. In the past five years, there have been 39 applications for new moving licenses. Of those, 19 were subjected to protests by one or more existing moving companies, giving a total of 114 protests. You can see an example of a protest here. Note that it doesn’t even suggest that the applicant is unqualified or unsafe or untrustworthy. That’s typical; in fact, since 2007, no protest has ever alleged that an applicant was a danger to the public. Instead, all of them have asserted as grounds for protest that the new company would “directly compet[e] with” the existing company and “result in a diminution of [its] revenues.”

It gets worse: since 2007, not a single protested application for a moving license has ever been granted. If a protest is filed, the Transportation Cabinet always rejects that application, without regard to the applicant’s qualifications. Take the case of Michael Ball. He’d been in the moving business for 35 years when he filed an application for his own license so he could start his own company. But existing companies protested that he would compete against them, so his application was denied in a written opinion that acknowledged he was safe and qualified—but a new moving company wasn’t “necessary.”

The pattern is different when a person applies for permission to buy a license from an existing moving company. There, the existing firms don’t face the same competitive threat, so they don’t file protests. Those applications are easily granted. In one case, an applicant asked for a new license, and was denied, in part because she’d operated illegally without a license before filing her application. But only a year and a half later, she reapplied for permission to buy a license from an existing company—and that was approved, in a decision that remarked favorably on her long experience in the moving industry!

It’s not just Kentucky. As I explain in an article in the next George Mason Civil Rights Law Journal, the pattern was the same in Missouri, where the Pacific Legal Foundation also challenged a CON law for moving companies. Between 2005 and 2010, there were 76 applications for moving licenses in Missouri: 17 sought authority to operate statewide, and all were subjected to one or more objections by existing firms, for a total of 106 interventions. The other 59 only wanted to operate either within a “commercial zone” (exempt from the licensing rules) or in an isolated or rural area, where they presented little competitive threat to existing firms—and none of them were ever protested.

All of the 106 objections were filed by existing moving companies that already had licenses, and all stated as the sole grounds for objection that allowing a new moving company would cause “diversion of traffic or revenue.” None ever alleged any danger to public. In 14 of the 17 protested cases, the applicant simply gave up—knowing how expensive and time-consuming it would be to try to prove a “public necessity” for a new moving company—and either withdrew their applications or asked for a smaller operating radius (in which cases, the existing companies always withdrew their objections, proving again that they were not concerned with public safety). Only three times did an applicant insist on seeking statewide authority. And of these, one decided to buy an existing license instead (all objections were then dropped); one was denied a license on the grounds that he would compete against existing movers—and the other was approved on the grounds that competition is a good thing!

When we challenged the constitutionality of the Missouri law, the legislature backed down and repealed it. The results were stark. Previously, the state Department of Transportation reported an average wait time of 154 days on a moving license application. After repeal, that dropped to 19 days.

It ought to be so easy to run a moving business. You should be able to get a truck, paint the word MOVER on the side, and go from there. But Certificate of Public Convenience And Necessity laws—which were invented in the late 19th century to regulate railroads—now bar entry into a wide variety of industries: everything from taxis and limos to moving companies and even hospitals! These are normal, competitive industries that should not be restricted in this way. When they are, the result is to create cartels that raise prices for consumers and deprive hard-working entrepreneurs of their right to earn a living.

Remarkably, every time the Supreme Court has considered the constitutionality of laws like these, it has struck them down. And the Court has made clear that the government may only restrict entry into a trade or profession if its grounds for doing so are related to a person’s “fitness or capacity to practice the profession.” But Certificate of Necessity laws have no relationship at all to a person’s fitness or qualifications. Moreover, the Sixth Circuit—which governs Kentucky—has made clear that the Constitution forbids states from using licensing laws simply to protect established businesses against legitimate economic competition. Yet Kentucky laws explicitly forbid competition, simply to prop up existing firms. And not only do Kentucky bureaucrats deprive hard-working entrepreneurs like Raleigh Bruner of their right to earn a living—but while his federal civil rights lawsuit was going forward, they tried to shut down Raleigh’s business by suing him in state court! Fortunately, the federal judge put a stop to that. Here’s hoping the courts also put a stop to the Bluegrass State’s unconstitutional favoritism.

]]>http://volokh.com/2014/01/18/kentuckys-war-little-guy/feed/0Could Cellphone Cases Help Justin Bieber?http://volokh.com/2014/01/18/cellphone-cases-help-justin-bieber/
http://volokh.com/2014/01/18/cellphone-cases-help-justin-bieber/#commentsSat, 18 Jan 2014 13:51:21 +0000http://volokh.com/?p=80598Jess Bravin has a report that could be of great interest to the VC readership’s Belieber contingent:

Deputies searched Mr. Bieber’s Calabasas, Calif., house on Tuesday and seized his iPhone, among other items. The device could contain photos or video related to the egging, authorities think.

But Sgt. Ernie Masson, reached at the sheriff’s Malibu/Lost Hills station, said that while deputies had a search warrant for the Bieber house, he could not say whether it specifically covered the phone.

Deputies searched Mr. Bieber’s Calabasas, Calif., house on Tuesday and seized his iPhone, among other items. The device could contain photos or video related to the egging, authorities think.

But Sgt. Ernie Masson, reached at the sheriff’s Malibu/Lost Hills station, said that while deputies had a search warrant for the Bieber house, he could not say whether it specifically covered the phone.

]]>http://volokh.com/2014/01/18/cellphone-cases-help-justin-bieber/feed/0Conservatives Adopt Progressive Prioritieshttp://volokh.com/2014/01/17/conservatives-adopt-progressive-priorities/
http://volokh.com/2014/01/17/conservatives-adopt-progressive-priorities/#commentsSat, 18 Jan 2014 04:52:58 +0000http://volokh.com/?p=80589Progressive constitutional doctrine underwent some interesting changes in the middle of the twentieth century. One was the return of liberty-based concerns in jurisprudence, and the repudiation of some of the more extreme Progressive democracy-based legal decisions. This is most notable in West Virginia Bd. of Ed. v. Barnette, which held that school children could not be compelled to salute the flag, and overruled Minersville School District v. Gobitis only three years after the earlier decision had allowed schools to require this. Then in cases like Griswold, the Court recognized a right to privacy which ultimately barred the state from intruding into the bedroom. Justifying this right to privacy was difficult for Progressives, since doing so ran counter to democracy. Witness the fight between Justices Douglas and Black in Griswold. Black rightly argues that Douglas is reviving Lochner, but Douglas tries weakly to evade that accusation by taking shelter in weird language of “emanations” and “penumbras.” But the trend had begun of liberal justices reinjecting liberty considerations into some aspects of their jurisprudence, ultimately a healthy development, whatever its shortcomings.

What’s more interesting to me is how conservatives responded by making the Progressive theory of judicial restraint their own. They saw decisions like Griswold as disruptive to traditional values and social structures, and as rooted in abstract conceptions of justice of which good Burkean gradualists are always suspicious. But that gradualism combined with the primacy of democracy meant moral relativism.

Chief Justice William Rehnquist, for example, argued that there is “no basis other than the individual conscience of the citizen that may serve as a platform for the launching of moral judgments,” and “no conceivable way in which I can logically demonstrate to you that the judgments of my conscience are superior to the judgments of your [...]

]]>Progressive constitutional doctrine underwent some interesting changes in the middle of the twentieth century. One was the return of liberty-based concerns in jurisprudence, and the repudiation of some of the more extreme Progressive democracy-based legal decisions. This is most notable in West Virginia Bd. of Ed. v. Barnette, which held that school children could not be compelled to salute the flag, and overruled Minersville School District v. Gobitis only three years after the earlier decision had allowed schools to require this. Then in cases like Griswold, the Court recognized a right to privacy which ultimately barred the state from intruding into the bedroom. Justifying this right to privacy was difficult for Progressives, since doing so ran counter to democracy. Witness the fight between Justices Douglas and Black in Griswold. Black rightly argues that Douglas is reviving Lochner, but Douglas tries weakly to evade that accusation by taking shelter in weird language of “emanations” and “penumbras.” But the trend had begun of liberal justices reinjecting liberty considerations into some aspects of their jurisprudence, ultimately a healthy development, whatever its shortcomings.

What’s more interesting to me is how conservatives responded by making the Progressive theory of judicial restraint their own. They saw decisions like Griswold as disruptive to traditional values and social structures, and as rooted in abstract conceptions of justice of which good Burkean gradualists are always suspicious. But that gradualism combined with the primacy of democracy meant moral relativism.

Chief Justice William Rehnquist, for example, argued that there is “no basis other than the individual conscience of the citizen that may serve as a platform for the launching of moral judgments,” and “no conceivable way in which I can logically demonstrate to you that the judgments of my conscience are superior to the judgments of your conscience, and vice versa.” This meant that when the majority enacts laws, it aggregates the people’s subjective preferences—which then become both morally right and legally valid. “The laws that emerge after a typical political struggle in which various individual value judgments are debated,” he wrote, “take on a form of moral goodness because they have been enacted into positive law.” But it is only “the fact of their enactment that gives them whatever moral claim they have upon us…not any independent virtue they may have.”

Note how this reverses the principles of the Declaration of Independence. The Declaration holds that there are moral truths rooted in universal human nature; these are not matters of choice any more than are the laws of economics or the rules of a healthy diet—lawmakers are confined within them, and the laws they make take on a form of goodness only if they consist with those principles. The fact of their enactment is actually essentially irrelevant to the moral claim they have upon us, because a command is not, and cannot be, normative. (A command to do a wrong thing, for instance, does not thereby cease to be a command—whereas a purported moral rule to do a wrong thing ceases thereby to be a moral rule.) Yet while the Declaration provides that states may only do things “which Independent States may of right do,” Rehnquist’s formulation reverses this: the will of the majority is not only presumptively valid, but the very definition and source of morality; it creates moral law, so that states determine what individuals may, of right, do.

Probably the most influential conservative critic of judicial activism was Robert Bork, who explicitly denounced the Declaration and wholeheartedly embraced the Progressive critique of the judiciary in The Tempting of America. The Constitution’s “Madisonian system,” he claimed, provides that “in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities.” This was, of course, the exact reverse of Madison’s actual beliefs; Madison held that nobody is ever “entitled” to rule—and certainly not on account merely of them being majorities. Instead, rulers are authorized to rule, and only within the preexisting rights of individuals.

But while Bork claimed to recognize that courts have a duty to protect the individual against the majority, he provided no recipe for doing so, and he believed individual liberties should be strictly limited to those specified in the Bill of Rights. True, the Ninth Amendment declares that this is the wrong way to read the Constitution: it says that the fact that some rights are specified must not be interpreted to deny the existence or importance of other rights. But Bork tried to dodge the import of the Ninth Amendment by claiming, falsely, that there is “almost no history that would indicate what the ninth amendment was intended to accomplish,” and even likening that Amendment to an “inkblot.” Actually, Madison, Hamilton, and others wrote at length about what that Amendment meant, making clear that it was intended to ensure that nobody would think the Bill of Rights specifies all the rights that people possess.

Bork’s rejection of the idea that rights precede the state and limit its powers is rooted in moral agnosticism. “There is no principled way to decide that one man’s gratifications are more deserving of respect than another’s or that one form of gratification is more worthy of another,” he writes.

There is no way of deciding these matters other than by reference to some system of moral or ethical values that has no objective or intrinsic validity of its own and about which men can and do differ…. The issue of the community’s moral and ethical values, the issue of the degree of pain an activity causes, are matters concluded by the passage and enforcement of the laws in question. The judiciary has no role to play other than that of applying the statutes in a fair and impartial manner.

Thus, despite his reputation for moralistic conservatism, Bork was actually a relativist: the majority has unlimited freedom to adopt its (entirely subjective) moral preferences as law, and to impose those preferences on others. There is no way to judge the rightness or wrongness of the majority’s decisions in this matter, because the fact that a majority has adopted something just makes it right.

This argument was an updated version of the wolf’s view of political authority: legislative majorities have a basic right to do what they want to the citizen and the product of his labor, and those protections that are accorded to individual rights are only matters of legislative grace. In fact, Bork indignantly rejected Justice Harry Blackmun’s statement in his Bowers dissent that individual rights are protected because “a person belongs to himself and not others nor to society as a whole.” Such “extreme individualism,” Bork contended, would lead to a world in which “society may make no moral judgments that are translated into law.” Thomas Jefferson wrote that each of us is “made for ourselves,” and that it would be “slavery” to “suppose that a man had less right in himself than one of his neighbors or indeed all of them put together,” but in Bork’s view, the notion that each person belongs to himself and not to society as a whole “can hardly be taken seriously.” Nobody, he wrote, “should act on the principle that a ‘person belongs to himself and not to others.’ No citizen should take the view that no part of him belongs to ‘society as a whole.’”

The confusion between the state’s protection of rights on one hand, and its creation of “rights” (i.e., privileges) on the other, becomes clear when we ask whether the state creates, say, a woman’s right not to be raped. According to the positivist argument, a woman has no fundamental human right not to be raped; her so-called private or voluntary sphere is only a creation of law and hardly voluntary. Without the criminal laws against rape, or legal rules relating to marriage, divorce, and child-rearing, and the regulation of contraceptives, maternity care, or abortion, the relationship between men and women would not be what it now is. Indeed, it would be extremely difficult to figure out what that relationship might be, if it would exist in recognizable form at all. If a woman wants the right not to be raped, then according to this argument, she must advance and justify that right/privilege in a public forum. The state might give her that right by promulgating and enforcing rules against rape, but only if the lawmakers—who stand in a superior position to her, not in a position of equality—choose to create such a realm of freedom for her.

This example might appear extreme. But it is what Bork endorsed. In a democracy, he argued, the majority has a boundless power to outlaw whatever conduct it finds objectionable, including conduct that takes place in private, harms nobody, and is not witnessed or overheard by anyone else. This is because all law is simply the enforcement of the majority’s subjective and irrational prejudices. Just knowing that some activity is taking place and being “outraged” by it entitles the majority to proscribe that activity. Presumably, this would even include criminalizing private religious beliefs—because “[a] change in the moral environment…may surely be felt to be as harmful as the possibility of physical violence.” But it certainly would include rape, because laws relating to rape are also based on irrational emotional impulses: “[t]here is, indeed, no objection to forcible rape in the home…except a moral objection,” and morality has “no objective or intrinsic validity.”

Thus while Bork claimed to recognize a “moral distinction between forcible rape and consenting sexual activity between adults,” such a distinction was only his personal idiosyncrasy. There is “no objectively ‘correct’ hierarchy” of ethical values, and therefore “no way to decide” whether “sexual gratification [is] more worthy than moral gratification.” So we must “put such issues to a vote,” and “the majority morality prevails.” That, of course, means that a woman’s right not to be raped is only a subjective preference—and one the majority may override at will.

So, notwithstanding Bork’s belief that there is a difference between rape and consensual sex, “the subject for discussion is not my morality…. If a majority of my fellow citizens decide that [rape and consensual sex], while not alike, are nevertheless similar enough so that both actions should be made criminal,” then one must comply with that decision regardless of one’s own opinion; “while I may disagree…it is in the polling booth that my moral views count.” Obviously it would follow from the same premises that the majority may also permit rape by revoking a woman’s rights/privileges. Women would then need to resort to the ballot box to request that protection—assuming the majority sees fit to give them the right/privilege to vote.

We see here the horrifying consequences that follow from the notion that rights are benefits created by the state. That contention empties the word “right” of any real content, and replaces it with a permission extended by the superior state to the inferior individual, when and how the state chooses.

The founding fathers were familiar with this argument, and they rejected it. John Locke, the intellectual progenitor of the American Revolution, is most famous for his Second Treatise of Civil Government, passages of which Jefferson paraphrased in the Declaration. But in his First Treatise, Locke had focused on refuting the arguments of Robert Filmer, a monarchist whose view of rights was remarkably similar to modern positivism. Filmer claimed that government owns citizens, and that it may give them rights or withhold rights from them whenever it sees fit. So, Locke asked in his rejoinder, can princes also eat their subjects? If we recognize that rights are not just government-created permissions, we also can recognize that there are limits on what government may justly do to us. But Rehnquist and Bork held that government comes first, and that it gives people freedom when it wills, and for its own purposes. Their argument, as Locke said, lies in a little compass, and it is this: that all government is absolute monarchy, and the ground they build on is this: that no man is born free.

]]>http://volokh.com/2014/01/17/conservatives-adopt-progressive-priorities/feed/0Did Judge Martin Retire Because He Was Under Investigation? – UPDATEDhttp://volokh.com/2014/01/17/judge-martin-retire-investigation/
http://volokh.com/2014/01/17/judge-martin-retire-investigation/#commentsSat, 18 Jan 2014 04:24:33 +0000http://volokh.com/?p=80593Last July, Judge Boyce Martin announced his retirement from the U.S. Court of Appeals for the Sixth Circuit. Tonight, TPM reports that Martin made his decision “under a cloud of accusations that he had racked up nearly $140,000 in ‘questionable travel expenses.'”

The details came out in a decision filed by five members of a federal panel on judicial conduct. The decision was in response to a petition filed by Boyce in August asking that his name be kept confidential and that his case not be referred to the Justice Department. Both requests were denied. . . .

Before the investigation could go any further, according to Friday’s decision, Martin submitted his letter of resignation to President Obama. Because of that, the court investigators halted their inquiry and never reached a conclusion about the expenses. . . .

In its decision, the panel wrote that the court’s efforts to disclose Martin’s name and refer his case to the Justice Department’s Public Integrity Section were appropriate under federal rules.

UPDATE: A spokesperson for Judge Martin e-mails to note that Judge Martin had offered to repay all travel reimbursements he had received over the relevant period, not merely those that were in question. This is the source of the $138,500 figure. The spokesperson did not identify the value of those reimbursements that were in question, however. According to the ruling, Judge Martin offered to repay this amount in three installments between June and August 2013, but only the first two payments were ever received.

]]>Last July, Judge Boyce Martin announced his retirement from the U.S. Court of Appeals for the Sixth Circuit. Tonight, TPM reports that Martin made his decision “under a cloud of accusations that he had racked up nearly $140,000 in ‘questionable travel expenses.'”

The details came out in a decision filed by five members of a federal panel on judicial conduct. The decision was in response to a petition filed by Boyce in August asking that his name be kept confidential and that his case not be referred to the Justice Department. Both requests were denied. . . .

Before the investigation could go any further, according to Friday’s decision, Martin submitted his letter of resignation to President Obama. Because of that, the court investigators halted their inquiry and never reached a conclusion about the expenses. . . .

In its decision, the panel wrote that the court’s efforts to disclose Martin’s name and refer his case to the Justice Department’s Public Integrity Section were appropriate under federal rules.

UPDATE: A spokesperson for Judge Martin e-mails to note that Judge Martin had offered to repay all travel reimbursements he had received over the relevant period, not merely those that were in question. This is the source of the $138,500 figure. The spokesperson did not identify the value of those reimbursements that were in question, however. According to the ruling, Judge Martin offered to repay this amount in three installments between June and August 2013, but only the first two payments were ever received.

SECOND UPDATE: According to Judge Martin’s spokesperson, he had sent a check to pay the third installment when it was due. As this payment appears not to have been received by the court, he has sent a new payment to cover the final installment.

]]>http://volokh.com/2014/01/17/judge-martin-retire-investigation/feed/0Federal Ban on Lobbyists’ Service on Advisory Committees May Violate the First Amendmenthttp://volokh.com/2014/01/17/federal-ban-lobbyists-service-advisory-committees-may-violate-first-amendment/
http://volokh.com/2014/01/17/federal-ban-lobbyists-service-advisory-committees-may-violate-first-amendment/#commentsSat, 18 Jan 2014 00:47:22 +0000http://volokh.com/?p=80588[UPDATE: Whoops, Jonathan beat me to it; I’m turning off comments, so people can post on that thread instead.]

President Obama, seeking to reduce the “culture of special interest access,” directed executive agency heads to bar federally registered lobbyists from serving on advisory committees. Appellants, federally registered lobbyists wishing appointment to one type of advisory committee — Industry Trade Advisory Committees (ITACs) — challenge the constitutionality of the presidential ban. Because the ban requires Appellants to limit their exercise of a constitutional right — in this case, the First Amendment right to petition government — in order to qualify for a governmental benefit — in this case, ITAC membership — we reverse the district court’s premature dismissal of the complaint and remand for that court to determine in the first instance whether the government’s interest in excluding federally registered lobbyists from ITACs outweighs any impingement on Appellants’ constitutional rights.

Created by the Trade Act of 1974, which requires the President to “seek information and advice from representative elements of the private sector … with respect to” trade policy, ITACs play a significant role in shaping international trade agreements. The sixteen industry-specific ITACs run the gamut of industrial interests from Aerospace Equipment to Consumer Goods to Service and Financial Industries. In addition to meeting “at the call of the United States Trade Representative,” ITACs prepare reports for the President, Congress, and the Trade Representative on whether proposed trade agreements provide for “equity and reciprocity within” the committees’ sector. Although ITAC advice is non-binding, the Act requires the Trade

President Obama, seeking to reduce the “culture of special interest access,” directed executive agency heads to bar federally registered lobbyists from serving on advisory committees. Appellants, federally registered lobbyists wishing appointment to one type of advisory committee — Industry Trade Advisory Committees (ITACs) — challenge the constitutionality of the presidential ban. Because the ban requires Appellants to limit their exercise of a constitutional right — in this case, the First Amendment right to petition government — in order to qualify for a governmental benefit — in this case, ITAC membership — we reverse the district court’s premature dismissal of the complaint and remand for that court to determine in the first instance whether the government’s interest in excluding federally registered lobbyists from ITACs outweighs any impingement on Appellants’ constitutional rights.

Created by the Trade Act of 1974, which requires the President to “seek information and advice from representative elements of the private sector … with respect to” trade policy, ITACs play a significant role in shaping international trade agreements. The sixteen industry-specific ITACs run the gamut of industrial interests from Aerospace Equipment to Consumer Goods to Service and Financial Industries. In addition to meeting “at the call of the United States Trade Representative,” ITACs prepare reports for the President, Congress, and the Trade Representative on whether proposed trade agreements provide for “equity and reciprocity within” the committees’ sector. Although ITAC advice is non-binding, the Act requires the Trade Representative to “inform the advisory committees of significant departures from such advice or recommendations made.”

Unlike many advisory committees, ITACs exist for the very purpose of reflecting the viewpoints of private industry. According to the Trade Act, the “committees shall, insofar as is practicable, be representative of all industry, labor, agricultural, or service interests.” Applicants for ITAC membership must be sponsored by a firm or organization engaged in trade or trade policy. ITAC members serve in a “representative capacity presenting the views and interests of a U.S. entity or U.S. organization.” It should thus come as no surprise that[, for example,] the Aerospace Equipment ITAC includes representatives of Boeing, Pratt & Whitney, Gulfstream, General Electric, Lockheed Martin, and Bell Aerospace….

Although Congress created ITACs to represent the views of the private sector, President Obama directed “the heads of executive departments and agencies not to make any new appointments or reappointments of federally registered lobbyists to advisory committees.” In so directing, the President sought to further his commitment to change “the culture of special-interest access” that is furthered by lobbyists’ “service in privileged positions within the executive branch.” “My administration,” the President explained, “is committed to reducing the undue influence of special interests that for too long has shaped the national agenda and drowned out the voices of ordinary Americans.” Pursuant to the President’s directive, and setting the stage for this litigation, the Commerce Secretary and the Trade Representative prohibit federally registered lobbyists from serving on ITACs.

The court notes that lobbying is generally constitutionally protected by the Petition Clause, discusses the various precedents involved in the case, and concludes:

To sum up, then, Appellants have pled a viable First Amendment unconstitutional conditions claim. That is, they allege that the government has conditioned their eligibility for the valuable benefit of ITAC membership on their willingness to limit their First Amendment right to petition government.

But this does not end our inquiry. The Supreme Court has long sanctioned government burdens on public employees’ exercise of constitutional rights “that would be plainly unconstitutional if applied to the public at large.” Although ITAC service differs from public employment, the government’s interest in selecting its advisors implicates similar considerations that we believe may justify similar restrictions on individual rights. As the Supreme Court explained in Pickering v. Board of Education [a leading government-as-employer precedent], the “problem in [these cases] is to arrive at a balance between the interests of the [individual] … and the interest of the State.” And where, as here, the government imposes a “blanket” ban on protected activity, its “burden is greater” than in an ordinary Pickering case.

The government justifies the ban on the grounds that it “directly relates to the purposes and efficacy of the ITACs as advisers” by “enabl[ing] the government to listen to individuals who have experience in the industry but who are not registered lobbyists, and are thus not otherwise as actively engaged in the political and administrative process.” This rationale, Appellants respond, is “barely intelligible” because ITAC members “serve in a representative capacity.” … [G]iven that the issue is virtually unbriefed, that the district court dismissed the complaint pursuant to Rule 12(b)(6), and that the challenged ban represents a major presidential initiative, we believe the wisest course of action is to remand for the district court to develop a factual record and undertake the Pickering analysis in the first instance.

In so doing, the district court should ask the parties to focus on the justification for distinguishing, as the lobbyist ban does, between corporate employees (who may represent their employers on ITACs) and the registered lobbyists those same corporations retain (who may not). The court may also want to ask the government to explain how banning lobbyists from committees composed of representatives of the likes of Boeing and General Electric protects the “voices of ordinary Americans.”

As I said, a very interesting case, both to those who are interested in government-industry relations, and to those interested in the special First Amendment rules applicable to the government acting in a managerial capacity (such as with respect to its employees). Read the whole opinion.

]]>http://volokh.com/2014/01/17/federal-ban-lobbyists-service-advisory-committees-may-violate-first-amendment/feed/0Supreme Court Grants Cert in Both Cell-Phone Search Caseshttp://volokh.com/2014/01/17/supreme-court-grants-cert-cell-phone-search-cases/
http://volokh.com/2014/01/17/supreme-court-grants-cert-cell-phone-search-cases/#commentsFri, 17 Jan 2014 23:13:35 +0000http://volokh.com/?p=80585Today the Supreme Court agreed to hear both of the pending cell-phone search cases; as explained here, one case, Wurie, involves an old-style flip-phone, and the second, Riley, involves a modern smart phone. The Court modified the Questions Presented in Riley to match that in Wurie, so the question presented in both is “[w]hether evidence admitted at petitioner’s trial was obtained in a search of petitioner’s cell phone that violated petitioner’s Fourth Amendment rights.”

Why did the Court take both cases instead of just picking one? One reason may be that Riley has more representative facts but Wurie lets the United States play a larger role: As petitioner, DOJ can file a full length merits brief, a reply brief, and get 30 minutes of oral argument, instead of filing an amicus brief and getting the expected 10 minutes of the state’s oral argument time. Alternatively, perhaps the Justices figured that the issue can arise with many different facts, and they figured taking two cases lets them look at the broader issue (see, for example, Miranda v. Arizona). It’s hard to say.

Either way, these cases should be really important and very fun to watch. I expect them to be the first of many computer search-and-seizure cases the Supreme Court will hear over the next few decades. As I wrote in this short essay on the issue raised by Wurie and Riley, “The computer will be to the 21st century Fourth Amendment what the automobile was to the 20th century Fourth Amendment. In both cases, transformative technologies justify technology-specific rules.” The process of engaging in equilibrium-adjustment for the computer world is likely to occupy the Justices for a long time, and my bet is on it leading to a new criminal procedure with many computer-specific [...]

]]>Today the Supreme Court agreed to hear both of the pending cell-phone search cases; as explained here, one case, Wurie, involves an old-style flip-phone, and the second, Riley, involves a modern smart phone. The Court modified the Questions Presented in Riley to match that in Wurie, so the question presented in both is “[w]hether evidence admitted at petitioner’s trial was obtained in a search of petitioner’s cell phone that violated petitioner’s Fourth Amendment rights.”

Why did the Court take both cases instead of just picking one? One reason may be that Riley has more representative facts but Wurie lets the United States play a larger role: As petitioner, DOJ can file a full length merits brief, a reply brief, and get 30 minutes of oral argument, instead of filing an amicus brief and getting the expected 10 minutes of the state’s oral argument time. Alternatively, perhaps the Justices figured that the issue can arise with many different facts, and they figured taking two cases lets them look at the broader issue (see, for example, Miranda v. Arizona). It’s hard to say.

Either way, these cases should be really important and very fun to watch. I expect them to be the first of many computer search-and-seizure cases the Supreme Court will hear over the next few decades. As I wrote in this short essay on the issue raised by Wurie and Riley, “The computer will be to the 21st century Fourth Amendment what the automobile was to the 20th century Fourth Amendment. In both cases, transformative technologies justify technology-specific rules.” The process of engaging in equilibrium-adjustment for the computer world is likely to occupy the Justices for a long time, and my bet is on it leading to a new criminal procedure with many computer-specific rules.

Why would Congress have inserted the phrase “established by the State under [42 U.S.C. § 18031]” if it intended to refer to Exchanges created by a state or by HHS? But defendants [the government] provide a plausible and persuasive answer: Because the ACA takes a state-established Exchange as a given and directs the Secretary of HHS to establish such Exchange and bring it into operation if the state does not do so. See 42 U.S.C. §§ 18031(b)–(d), 18041(c). In other words, even where a state does not actually establish an Exchange, the federal government can create “an Exchange established by the State under [42 U.S.C. § 18031]” on behalf of that state.

I’m certainly no expert at this point on the relevant provisions, and maybe if I went back and read all the cited language this would make more sense to me. But for now, the idea that “an exchange established by a state” can in practice be “an exchange established by the Federal Government on behalf of a state” seems to me to do violence to the English language. Of course, after C.J. Roberts’ opinion in NFIB, such concerns may no longer be decisive. Or maybe this is why the Democrats were so intent on getting three new nominees on to the D.C. Circuit?

UPDATE: This, from the comments, seems right to me: “A s1321 Fed Exchange is a s1311 Exchange. But it still isn’t a s1311 exchange established by the state, which is what is necessary to get the tax relief. It’s a s1311 exchange established by the Feds, because the state has failed to … establish an exchange.” [...]

]]>There’s a lot to absorb in Wednesday’s opinion, but I can’t get past this analysis:

Why would Congress have inserted the phrase “established by the State under [42 U.S.C. § 18031]” if it intended to refer to Exchanges created by a state or by HHS? But defendants [the government] provide a plausible and persuasive answer: Because the ACA takes a state-established Exchange as a given and directs the Secretary of HHS to establish such Exchange and bring it into operation if the state does not do so. See 42 U.S.C. §§ 18031(b)–(d), 18041(c). In other words, even where a state does not actually establish an Exchange, the federal government can create “an Exchange established by the State under [42 U.S.C. § 18031]” on behalf of that state.

I’m certainly no expert at this point on the relevant provisions, and maybe if I went back and read all the cited language this would make more sense to me. But for now, the idea that “an exchange established by a state” can in practice be “an exchange established by the Federal Government on behalf of a state” seems to me to do violence to the English language. Of course, after C.J. Roberts’ opinion in NFIB, such concerns may no longer be decisive. Or maybe this is why the Democrats were so intent on getting three new nominees on to the D.C. Circuit?

UPDATE: This, from the comments, seems right to me: “A s1321 Fed Exchange is a s1311 Exchange. But it still isn’t a s1311 exchange established by the state, which is what is necessary to get the tax relief. It’s a s1311 exchange established by the Feds, because the state has failed to … establish an exchange.”

]]>http://volokh.com/2014/01/17/d-c-district-court-judge-friedman-clinton-appointee-rejects-challenge-obamacare-federal-exchange-subsidies/feed/0Payday Lending and Overdraft Protectionhttp://volokh.com/2014/01/17/payday-lending-overdraft-protection/
http://volokh.com/2014/01/17/payday-lending-overdraft-protection/#commentsFri, 17 Jan 2014 22:18:21 +0000http://volokh.com/?p=80583I’ve noted previously, I have a forthcoming paper with former Comptroller of the Currency Robert Clarke that examines competition between payday lending and bank overdraft protection. The central point is easy to grasp–payday lending and overdraft protection are products offered by different providers but which compete for the same customers. And evidence indicates that in choosing between the two products consumers generally choose rationally.

The point came to mind (yet again) reading the Wall Street Journal yesterday, “Hefty Bank Fees Waylay Solders.” According to the article, many members of the military are frequent users of bank overdraft protection, which has caused some concern in some quarters. The article provides no hard evidence that usage of overdraft protection has risen in recent years, but implies that the general impression is that it has.

Assuming that the perception is correct that usage of overdraft protection by military members has risen in recent years, why would that be? Well, how about the enactment of the Military Lending Act in 2007, which imposed a 36% APR cap on payday loans to military members, effectively outlawing payday loans (and some other products for military members):

Congress cracked down with the Military Lending Act, which, starting in 2007, limited to 36% the APR interest on many payday-style loans to military members.

Since then, overdraft programs have replaced payday lending as the leading financial problem for many military personnel, says Adm. Abbot of the Navy-Marine relief society. Some financial institutions serving the military have reined in overdraft fees, he says, while others are engaged in “predatory or punitive overdraft practices.”

Eliminating access to a particular product (payday loans) doesn’t eliminate the need for credit. It is entirely predictable that eliminating payday loans to service members will result in increased use of bank overdraft [...]

]]>I’ve noted previously, I have a forthcoming paper with former Comptroller of the Currency Robert Clarke that examines competition between payday lending and bank overdraft protection. The central point is easy to grasp–payday lending and overdraft protection are products offered by different providers but which compete for the same customers. And evidence indicates that in choosing between the two products consumers generally choose rationally.

The point came to mind (yet again) reading the Wall Street Journal yesterday, “Hefty Bank Fees Waylay Solders.” According to the article, many members of the military are frequent users of bank overdraft protection, which has caused some concern in some quarters. The article provides no hard evidence that usage of overdraft protection has risen in recent years, but implies that the general impression is that it has.

Assuming that the perception is correct that usage of overdraft protection by military members has risen in recent years, why would that be? Well, how about the enactment of the Military Lending Act in 2007, which imposed a 36% APR cap on payday loans to military members, effectively outlawing payday loans (and some other products for military members):

Congress cracked down with the Military Lending Act, which, starting in 2007, limited to 36% the APR interest on many payday-style loans to military members.

Since then, overdraft programs have replaced payday lending as the leading financial problem for many military personnel, says Adm. Abbot of the Navy-Marine relief society. Some financial institutions serving the military have reined in overdraft fees, he says, while others are engaged in “predatory or punitive overdraft practices.”

Eliminating access to a particular product (payday loans) doesn’t eliminate the need for credit. It is entirely predictable that eliminating payday loans to service members will result in increased use of bank overdraft protection–just as it does for civilians.

Moreover, as we note in the article, in many situations payday loans are less expensive than overdraft protection (it appears from the article that the break even point in favor of overdraft protection is lower than for payday loans because overdraft fees on military bases are lower than typical market rates) and consumers understand this and use the products rationally. So the net impact of the MLA in some cases will be to take away a less expensive product and lead to greater use of a more-expensive product.

In the end, the article doesn’t report the data as to whether usage of overdraft protection rose after the MLA was enacted. But it would violate the predictions of economics if it didn’t.

]]>http://volokh.com/2014/01/17/payday-lending-overdraft-protection/feed/0Judge Brody Rejects NFL Settlement Agreementhttp://volokh.com/2014/01/17/judge-brody-rejects-nfl-settlement-agreement/
http://volokh.com/2014/01/17/judge-brody-rejects-nfl-settlement-agreement/#commentsFri, 17 Jan 2014 19:45:35 +0000http://volokh.com/?p=80581I’ve been following with fascination the overwhelming evidence about brain injuries caused by football. On the one hand, I believe in individual autonomy. On the other hand, I’m not really a fan of football. But I also don’t favor paternalistic policies that limit individuals from undertaking calculated risks. And yet, what about undisclosed risks?

All of that and more is at issue in the complaint brought by over 4,500 former football players who sued the National Football League for damages arising from their injuries. The complaints were consolidated before U.S. District Judge Anita Brody in Philadelphia. The players claim that the NFL was negligent in failing to inform players of the link between repeated traumatic head impacts and long-term brain injuries, including early onset Alzheimer’s and dementia. They claim the NFL knew about these neurological impairments as early as the 1970s and didn’t take any steps to redress these issues until 1994.

On Tuesday, Judge Brody took the unusual step of a issuing a preliminary rejection of the “$760 million over a period of 20 years” reached between the players and the NFL, asking for more detailed financial information, and stating that:

“Judicial review must be exacting and thorough. The task is demanding because the adversariness of litigation is often lost after the agreement to settle….

…I am primarily concerned that not all Retired NFL Football Players who ultimately receive a Qualifying Diagnosis or their related claimants will be paid. The Settlement fixes the size of the Monetary Award Fund. It also fixes the Monetary Award level for each Qualifying Diagnosis, subject to a variety of offsets. In various hypothetical scenarios, the Monetary Award Fund may lack the necessary funds to pay Monetary Awards for Qualifying Diagnoses. … it is difficult to see how the Monetary Award Fund would have [...]

]]>I’ve been following with fascination the overwhelming evidence about brain injuries caused by football. On the one hand, I believe in individual autonomy. On the other hand, I’m not really a fan of football. But I also don’t favor paternalistic policies that limit individuals from undertaking calculated risks. And yet, what about undisclosed risks?

All of that and more is at issue in the complaint brought by over 4,500 former football players who sued the National Football League for damages arising from their injuries. The complaints were consolidated before U.S. District Judge Anita Brody in Philadelphia. The players claim that the NFL was negligent in failing to inform players of the link between repeated traumatic head impacts and long-term brain injuries, including early onset Alzheimer’s and dementia. They claim the NFL knew about these neurological impairments as early as the 1970s and didn’t take any steps to redress these issues until 1994.

On Tuesday, Judge Brody took the unusual step of a issuing a preliminary rejection of the “$760 million over a period of 20 years” reached between the players and the NFL, asking for more detailed financial information, and stating that:

“Judicial review must be exacting and thorough. The task is demanding because the adversariness of litigation is often lost after the agreement to settle….

…I am primarily concerned that not all Retired NFL Football Players who ultimately receive a Qualifying Diagnosis or their related claimants will be paid. The Settlement fixes the size of the Monetary Award Fund. It also fixes the Monetary Award level for each Qualifying Diagnosis, subject to a variety of offsets. In various hypothetical scenarios, the Monetary Award Fund may lack the necessary funds to pay Monetary Awards for Qualifying Diagnoses. … it is difficult to see how the Monetary Award Fund would have the funds available over its lifespan to pay all claimants at these significant award levels….

I will deny the Motion for Preliminary Approval and Class Certification without prejudice. As a first step toward preliminary approval, I will order the parties to share the documentation referred to in their submissions with the Court through the Special Master.”

It’s quite unusual to deny a motion for preliminary approval. I’ll be following this one closely…

]]>http://volokh.com/2014/01/17/judge-brody-rejects-nfl-settlement-agreement/feed/0Bloggers = Media for First Amendment Libel Law Purposeshttp://volokh.com/2014/01/17/bloggers-media-first-amendment-libel-law-purposes/
http://volokh.com/2014/01/17/bloggers-media-first-amendment-libel-law-purposes/#commentsFri, 17 Jan 2014 18:34:10 +0000http://volokh.com/?p=80580So holds today’s Obsidian Finance Group v. Cox (9th Cir. Jan. 17, 2014) (in which I represented the defendant). To be precise, the Ninth Circuit concludes that all who speak to the public, whether or not they are members of the institutional press, are equally protected by the First Amendment. To quote the court,

The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352. In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue — not the identity of the speaker — provide the First Amendment touchstones.

]]>So holds today’s Obsidian Finance Group v. Cox (9th Cir. Jan. 17, 2014) (in which I represented the defendant). To be precise, the Ninth Circuit concludes that all who speak to the public, whether or not they are members of the institutional press, are equally protected by the First Amendment. To quote the court,

The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352. In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue — not the identity of the speaker — provide the First Amendment touchstones.

libel plaintiffs suing over statements on matters of public concern must prove that the defendant was negligent about the falsity of the statement, and

libel plaintiffs suing over statements on matters of public concern and seeking presumed or punitive damages (as opposed to identifiable compensatory damages) must prove that the defendant knew that the statement was false or recklessly disregarded the possibility that it was false.

But the court’s reasoning reaches the First Amendment more broadly, and correctly so (again, see the Freedom for the Press as an Industry, or for the Press as a Technology? article, which sets out the historical evidence). Note, though, that the court’s reasoning is limited to First Amendment protections; it doesn’t discuss state or federal statutes that provide extra protection to the “media” or to other subsets of speakers.

]]>http://volokh.com/2014/01/17/bloggers-media-first-amendment-libel-law-purposes/feed/0Can the Government Exclude Lobbyists from Advisory Committees?http://volokh.com/2014/01/17/can-government-exclude-lobbyists-advisory-committees/
http://volokh.com/2014/01/17/can-government-exclude-lobbyists-advisory-committees/#commentsFri, 17 Jan 2014 18:18:19 +0000http://volokh.com/?p=80579Today the U.S. Court of Appeals for the D.C. Circuit issued an interesting opinion in Autor v. Pritzker. Here’s how Judge Tatel summarized his opinion for the court:

President Obama, seeking to reduce the “culture of special interest access,” directed executive agency heads to bar federally registered lobbyists from serving on advisory committees. Appellants, federally registered
lobbyists wishing appointment to one type of advisory committee—Industry Trade Advisory Committees
(ITACs)—challenge the constitutionality of the presidential ban. Because the ban requires Appellants to limit their exercise of a constitutional right—in this case, the First Amendment right to petition government—in order to qualify for a governmental benefit—in this case, ITAC membership—we reverse the district court’s premature dismissal of the complaint and remand for that court to determine in the first instance whether the government’s interest in excluding federally registered lobbyists from ITACs outweighs any impingement on Appellants’ constitutional rights.

While the government may be able to defend this policy on remand, the court accepted the appellants claim that the policy effectively conditions eligibility for a valuable benefit (in this case, ITAC membership) on an individual’s willingness to restrict their exercise of his or her First Amendment rights. On remand, the question will be whether the government can assert interests to justify this imposition.

]]>Today the U.S. Court of Appeals for the D.C. Circuit issued an interesting opinion in Autor v. Pritzker. Here’s how Judge Tatel summarized his opinion for the court:

President Obama, seeking to reduce the “culture of special interest access,” directed executive agency heads to bar federally registered lobbyists from serving on advisory committees. Appellants, federally registered
lobbyists wishing appointment to one type of advisory committee—Industry Trade Advisory Committees
(ITACs)—challenge the constitutionality of the presidential ban. Because the ban requires Appellants to limit their exercise of a constitutional right—in this case, the First Amendment right to petition government—in order to qualify for a governmental benefit—in this case, ITAC membership—we reverse the district court’s premature dismissal of the complaint and remand for that court to determine in the first instance whether the government’s interest in excluding federally registered lobbyists from ITACs outweighs any impingement on Appellants’ constitutional rights.

While the government may be able to defend this policy on remand, the court accepted the appellants claim that the policy effectively conditions eligibility for a valuable benefit (in this case, ITAC membership) on an individual’s willingness to restrict their exercise of his or her First Amendment rights. On remand, the question will be whether the government can assert interests to justify this imposition.

]]>http://volokh.com/2014/01/17/can-government-exclude-lobbyists-advisory-committees/feed/0Where is Congress in Obama’s Reforms on Section 215?http://volokh.com/2014/01/17/where-is-congress/
http://volokh.com/2014/01/17/where-is-congress/#commentsFri, 17 Jan 2014 17:02:24 +0000http://volokh.com/?p=80576If I understand Obama’s new policy on Section 215, he is going to have the Executive Branch ask the judges on the Foreign Intelligence Surveillance Court (FISC) to begin to limit when the Executive can query the Section 215 database. That is, he will ask the judiciary to take on a new power to limit the Executive, so that the Executive can only query the database when the executive gets a court order signed by the FISC. In his words, “I have directed the Attorney General to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding, or in a true emergency.”

Maybe I’m just old-fashioned, but doesn’t Congress need to be involved in this little enterprise? The FISC is a creation of Congress. It has no power to do anything that Congress doesn’t grant it. The Executive and the Judiciary can’t just meet and agree on a new set of rules to govern surveillance programs; those rules are supposed to be generated by Congress. I suppose it shows how far from Congress’s text the FISC has taken the law that the Executive sees the FISC as the primary negotiating partner in creating new rules. The FISC’s interpretation of Section 215 is based on an implausible reading of Congress’s law, so it’s almost like it’s the FISC’s authority at issue, not Congress’s. But I hope we could recognize that FISA is a statute and statutes are enacted by the legislature. If the President and the FISC are having trouble locating this sometimes-elusive branch of government, they’re in the fancy building with the dome near the Supreme Court. Big building, can’t miss it.

Anyway, maybe I just misunderstood what President Obama said, in which case I will [...]

]]>If I understand Obama’s new policy on Section 215, he is going to have the Executive Branch ask the judges on the Foreign Intelligence Surveillance Court (FISC) to begin to limit when the Executive can query the Section 215 database. That is, he will ask the judiciary to take on a new power to limit the Executive, so that the Executive can only query the database when the executive gets a court order signed by the FISC. In his words, “I have directed the Attorney General to work with the Foreign Intelligence Surveillance Court so that during this transition period, the database can be queried only after a judicial finding, or in a true emergency.”

Maybe I’m just old-fashioned, but doesn’t Congress need to be involved in this little enterprise? The FISC is a creation of Congress. It has no power to do anything that Congress doesn’t grant it. The Executive and the Judiciary can’t just meet and agree on a new set of rules to govern surveillance programs; those rules are supposed to be generated by Congress. I suppose it shows how far from Congress’s text the FISC has taken the law that the Executive sees the FISC as the primary negotiating partner in creating new rules. The FISC’s interpretation of Section 215 is based on an implausible reading of Congress’s law, so it’s almost like it’s the FISC’s authority at issue, not Congress’s. But I hope we could recognize that FISA is a statute and statutes are enacted by the legislature. If the President and the FISC are having trouble locating this sometimes-elusive branch of government, they’re in the fancy building with the dome near the Supreme Court. Big building, can’t miss it.

Anyway, maybe I just misunderstood what President Obama said, in which case I will do my best Emily Litella and apologize for wasting your time. But if I heard what I think I heard, it sure sounds strange to my separation-of-powers ears.

One of the most common fallacies in the economics blogosphere — and elsewhere — is what I call “devalue and dismiss.” That is, a writer will come up with some critique of another argument, let us call that argument X, and then dismiss that argument altogether. Afterwards, the thought processes of the dismisser run unencumbered by any consideration of X, which after all is what dismissal means. Sometimes “X” will be a person or a source rather than an argument, of course.

The “devalue” part of this chain may well be justified. But it should lead to “devalue and downgrade,” rather than “devalue and dismiss.”

“Devalue and dismiss” is much easier of course, because there then will be fewer constraints on what one can believe and with what level of certainty. “Devalue and downgrade” keeps a lot of balls in the air and that can be tiresome and also unsatisfying, especially for those of us trained to look for neat, intuitive explanations.

I’m tempted to object, “Thank goodness for dismissal, because most ideas and thinkers are a waste of time.” But on reflection, Tyler’s overly optimistic. Dismissing ideas often requires rare intellectual discipline. Psychologists have documented our assent bias: Human beings tend to believe whatever we hear unless we make an affirmative effort to question it. As a result, our heads naturally accumulate intellectual junk. The obvious remedy is to try harder to “take out the trash” – or refuse to accept marginal ideas in the first place.

I think both Bryan and Tyler capture some of the truth. When new information or arguments cut against are strongly [...]

One of the most common fallacies in the economics blogosphere — and elsewhere — is what I call “devalue and dismiss.” That is, a writer will come up with some critique of another argument, let us call that argument X, and then dismiss that argument altogether. Afterwards, the thought processes of the dismisser run unencumbered by any consideration of X, which after all is what dismissal means. Sometimes “X” will be a person or a source rather than an argument, of course.

The “devalue” part of this chain may well be justified. But it should lead to “devalue and downgrade,” rather than “devalue and dismiss.”

“Devalue and dismiss” is much easier of course, because there then will be fewer constraints on what one can believe and with what level of certainty. “Devalue and downgrade” keeps a lot of balls in the air and that can be tiresome and also unsatisfying, especially for those of us trained to look for neat, intuitive explanations.

I’m tempted to object, “Thank goodness for dismissal, because most ideas and thinkers are a waste of time.” But on reflection, Tyler’s overly optimistic. Dismissing ideas often requires rare intellectual discipline. Psychologists have documented our assent bias: Human beings tend to believe whatever we hear unless we make an affirmative effort to question it. As a result, our heads naturally accumulate intellectual junk. The obvious remedy is to try harder to “take out the trash” – or refuse to accept marginal ideas in the first place.

On the other hand, when faced with arguments or data on issues that they know little about and don’t have strong opinions on, people are indeed overly creduluous, just as Bryan suggests. It’s psychologically easier to simply accept what you hear than to try to question it. Assent also requires less expenditure of time and effort.

If you want to be a better truth-seeker, you should indeed work harder at taking out cognitive trash when it comes to arguments about issues on which you don’t have strong views. But when it comes to issues where you do have strong beliefs, the more important danger to guard against is unjustified dismissal of opposing viewpoints.

]]>http://volokh.com/2014/01/17/people-dismissive-others-arguments-dismissive-enough/feed/0Live-Blogging President Obama’s NSA Speechhttp://volokh.com/2014/01/17/live-blogging-president-obamas-nsa-speech/
http://volokh.com/2014/01/17/live-blogging-president-obamas-nsa-speech/#commentsFri, 17 Jan 2014 16:02:40 +0000http://volokh.com/?p=80574I’m going to try live blogging the President’s remarks today on NSA. I’ve never done this before, so don’t be surprised if the whole thing comes crashing down in the middle.

11:15: The President gives us a few history lessons and a tour of intelligence policies of the last quarter century.

11:19 The President summarizes the impact of 9/11 and the success of the intelligence community in hunting terrorists. The changes in our intelligence programs has been successful, but the risk of abuse grew too.

11:21 The President trashes the past excesses of the previous administration.

11:24 America’s capabilities are unique, President claims. This is not correct. Lots of governments use big data for intelligence collection.

11:25 President appeals to the left, claiming to have stopped abuses and instituted new restraints, then to the right, by saying that the government, including NSA, has not abused its power and has consistently followed protocols to protect privacy.

11:27 “Now that I’m done with drones, it’s time to reform our intelligence community too” Unfortunately, President suggests, Snowden and his sensationalizing leaks have distorted the debate.

11:30 The basic approach guided by this principle: “We must retain the trust of the American people and people around the world.”

11:32 Basic observations: We do have real enemies and we need intelligence to protect the American people. We can’t unilaterally disarm. We’re targeted even by some of the nations that “feigned surprise” and international critics also recognize our special responsibilities. Second, inteligence community understands the risk of abuse. Third, we can’t rely on just the good intentions of government officials.

So far, this is a pretty good lecture, in the Obama style of rejecting straw men and seeking a middle ground at a high level of abstraction.

]]>I’m going to try live blogging the President’s remarks today on NSA. I’ve never done this before, so don’t be surprised if the whole thing comes crashing down in the middle.

11:15: The President gives us a few history lessons and a tour of intelligence policies of the last quarter century.

11:19 The President summarizes the impact of 9/11 and the success of the intelligence community in hunting terrorists. The changes in our intelligence programs has been successful, but the risk of abuse grew too.

11:21 The President trashes the past excesses of the previous administration.

11:24 America’s capabilities are unique, President claims. This is not correct. Lots of governments use big data for intelligence collection.

11:25 President appeals to the left, claiming to have stopped abuses and instituted new restraints, then to the right, by saying that the government, including NSA, has not abused its power and has consistently followed protocols to protect privacy.

11:27 “Now that I’m done with drones, it’s time to reform our intelligence community too” Unfortunately, President suggests, Snowden and his sensationalizing leaks have distorted the debate.

11:30 The basic approach guided by this principle: “We must retain the trust of the American people and people around the world.”

11:32 Basic observations: We do have real enemies and we need intelligence to protect the American people. We can’t unilaterally disarm. We’re targeted even by some of the nations that “feigned surprise” and international critics also recognize our special responsibilities. Second, inteligence community understands the risk of abuse. Third, we can’t rely on just the good intentions of government officials.

So far, this is a pretty good lecture, in the Obama style of rejecting straw men and seeking a middle ground at a high level of abstraction.

11:36 The reforms:

A presidential directive setting policy for intelligence collection, with regular White House review. On a quick look, this is quite unfortunate:

More transparency and declassification of FISC opinions. Annual reviews for future opinions.

President wants a panel of advocates to argue in the FISC. Bad idea, but not as bad as Blumenthal’s bill.

Vague proposal for new restrictions on section 702, the most successful anti-terrorism program in recent years.

NSLs: more transparency. Gag orders will have an end date and ISPs can reveal more data than before about the NSLs they receive. Means more makework for FBI to keep NSLs that should be secret secret.

The 215 program: President makes best argument for 215 — that it responds to a serious gap that contributed to 9/11. But the critics are right that this program needs a debate. “I am therefore ordering a transition that will end the Section 215 bulk metadata program as it currently exists, and establish a mechanism that preserves the capabilities we need without the government holding this bulk meta-data.” But he has no clue how to do this. Instead he announces two limits with nothing to do with the transfer: NSA may only map connections for two hops, not three, and it may conduct no searches without FISC approval in advance (with an emergency exception). This is going to create new work for everyone, without any reason to believe that the third hop has been abused, ever, or that NSA’s determinations of reasonable articulable suspicion, which the FISC can always review, have been made in an inappropriate way. He’s solving problems that don’t exist.

Even worse are proposals to try to satisfy international critics with promises they’ll find vague and unenforceable and unverifiable but that NSA will follow scrupulously and with a lawyerly disregard for practicality.

“We will not monitor the heads of state of our allies” but we will gather information on the intentions of governments. What better way to determine intentions than to monitor the decisions at the top?

High level coordination; promotions at State and a senior official to implement the privacy safeguards.

MLAT reform, maybe: This is a good idea that Justice will fight to the death in the interagency, at great cost to US interests.

Podesta to do a review of big data and privacy, with outreach through OSTP. Podesta is smart on these topics, but don’t expect much from this.

11:57 Back to the high ground and the high abstractions.

Overview: This turned out worse for intelligence than was expected, especially on 215 and the rights of foreigners. The President opened the door to “privatizing” the 215 program without any idea of how to do that, which simply will encourage legislative proposals that make the program unworkable while we’re waiting for the AG to decide how to implement the President’s notion. Meanwhile, he quite arbitrarily decides to eliminate the third hop search of phone networks, no matter what, and to go the the FISC for every search, barring emergencies. This builds in what could be weeks of delay before searches are conducted and adds to the FISC’s workload. All to solve a theoretic risk of abuse.

On foreign protections, it’s even worse. The principles on protecting dissent and avoiding ethnic and religious targeting are written broadly. If applied broadly they would prevent us from monitoring people who think Americans should be killed for religious or ethnic reasons. NSA has a deeply compliant and lawyer-ridden culture. If the directive can be interpreted to prohibit something, NSA employees will not do it, even if the interpretation is damaging to national security. That’s how they’ve behaved over the last thirty years and that culture won”t change. But the limits they observed before were on intelligence practices that touched Americans, where the agency was always hesitant and cautious. At the same time, the agency was encouraged to be aggressive, innovative, and relentless in pursuing foreign targets. Now the President is pushing all that hesitance and caution into the area where NSA has been most effective. It is likely to produce a generation of intelligence failures driven by a risk-averse National Security Agency.

Probably the most troubling are the details of the President’s directive, saying that foreign persons must get the same minimization protections as US persons. If I remember how dissemination limits on US persons work, NSA always deletes the name of a US person, even, say, an American spy in the FBI, and each consumer of the report has to say “I can’t understand this intelligence unless I know the name of the spy.” Then NSA sends it, keeping a record of everyone who asks. So are we now going to treat al-Qaeda terrorists the same way, slowing and complicating efforts to share information about imminent threats?

The limits on retention of personal data of foreigners also make little sense. NSA often collects data that has proven to be valuable in the past, and holds it for later search. It doesn’t have time or resources to evaluate the entire database right away. Now, it seems as though the NSA will have to evaluate all that data right away, not to find actionable intelligence but to scrub out the personal data of any foreign national whose communications might be found there. Now, maybe in time, we’ll find workarounds to avoid dumb results like that, but remember NSA’s culture. No one there is going to say, “This is dumb, the President can’t mean that, so let’s apply his guidance with a leavening of common sense.” They’re going to say, “Until you hear from the lawyers, apply the directive in the strictest possible way, no matter how dumb that seems.”

]]>http://volokh.com/2014/01/17/live-blogging-president-obamas-nsa-speech/feed/0Jonathan Haidt on Psychology and Politicshttp://volokh.com/2014/01/17/jonathan-haidt-psychology-politics/
http://volokh.com/2014/01/17/jonathan-haidt-psychology-politics/#commentsFri, 17 Jan 2014 15:22:24 +0000http://volokh.com/?p=80573A little while back I read Jonathan Haidt’s book The Righteous Mind: Why Good People are Divided by Politics and Religion and had the opportunity to meet him and hear him speak at a book party in NYC. I’ve been meaning to say a few things about it and the recent appearance of a piece by Haidt in Time magazine prompts it, an article and a quiz that illustrates his points. If you are not familiar with Haidt or his methodology, I encourage you to click over and do the quick 12 question quiz now before reading further; even if you are, you might go ahead and do it anyway because it is fun and will refresh your memory. Go ahead, I’ll wait.

So what’s Haidt’s argument? His basic idea is twofold. First, that people do not rationally choose their ideologies. You do not come into the political arena as a blank slate and then just examine all the moral and consequential arguments for different policies and pick the one that is most “correct.” Instead, you come into the political arena with subconscious, largely unexamined psychological beliefs. Initially for Haidt what he focused on was ideas of “disgust.” Over time that has broadened and he describes five key vectors or values of psychological morality: (1) care/harm, (2) fairness, (3) loyalty, (4) authority, and (5) sanctity. Haidt finds in his research that self-described “conservatives” tend to value all five vectors of morality (as he defines them). Liberals, by contrast, place a high value on “care” and “fairness” and a lower value on loyalty, authority, and sanctity. On the two values that conservatives and liberals both value (care and fairness) they do not define those terms the same way, although they both value them according to their different definitions.

]]>A little while back I read Jonathan Haidt’s book The Righteous Mind: Why Good People are Divided by Politics and Religion and had the opportunity to meet him and hear him speak at a book party in NYC. I’ve been meaning to say a few things about it and the recent appearance of a piece by Haidt in Time magazine prompts it, an article and a quiz that illustrates his points. If you are not familiar with Haidt or his methodology, I encourage you to click over and do the quick 12 question quiz now before reading further; even if you are, you might go ahead and do it anyway because it is fun and will refresh your memory. Go ahead, I’ll wait.

So what’s Haidt’s argument? His basic idea is twofold. First, that people do not rationally choose their ideologies. You do not come into the political arena as a blank slate and then just examine all the moral and consequential arguments for different policies and pick the one that is most “correct.” Instead, you come into the political arena with subconscious, largely unexamined psychological beliefs. Initially for Haidt what he focused on was ideas of “disgust.” Over time that has broadened and he describes five key vectors or values of psychological morality: (1) care/harm, (2) fairness, (3) loyalty, (4) authority, and (5) sanctity. Haidt finds in his research that self-described “conservatives” tend to value all five vectors of morality (as he defines them). Liberals, by contrast, place a high value on “care” and “fairness” and a lower value on loyalty, authority, and sanctity. On the two values that conservatives and liberals both value (care and fairness) they do not define those terms the same way, although they both value them according to their different definitions.

The second part of Haidt’s argument is that once you have subconsciously chosen your ideology (you don’t rationally choose what the important factors are) you also do not rationally and objectively weigh the evidence as to whether your ideological views are “correct.” Instead, people tend to subconsciously sift the information that they take in: you tend to overvalue evidence that supports your predispositions and dismiss evidence that is inconsistent with it. As a result, “evidence” becomes self-justifying.

In the end, this all becomes very bad for democracy. If people are choosing their ideologies based on their subjective psychological views and if people are subconsciously overweighting confirming evidence and dismissing contrary evidence, then it is hard to see how compromise and persuasion can occur.

Haidt also concludes that his model implies that there is a “conservative advantage” in politics: because conservatives value all five moral vectors and liberals value only two, this means that the conservative worldview will naturally tend to be able to pull in more people than liberalism.

So what to make of all this?

First, on Haidt’s central propositions, my sense is that he is correct. That ideologies are driven primarily by some sort of unexamined subconscious underlying psychological predispositions rather than rational argumentation seems to me to be correct. (Many readers will recognize a strong similarity here to Thomas Sowell’s fabulous book, A Conflict of Visions–a similarity that Haidt himself has noted).

On the other hand, I am not fully persuaded that the precise list of five values that Haidt identifies are necessarily the right list. I’m also not persuaded that they aren’t, but they don’t all seem uniformly persuasive to me. And indeed, in the book Haidt identifies a sixth value: the Liberty/Oppression value. This is not part of the original six, but Haidt says that it provides an explanation for why libertarians and conservatives tend to affiliate with each other. The question I had after reading that, however, is whether that sixth value actually swallows the other five, and so there really is only one key vector. To Haidt, I would add an additional hypothesis, which is that while the Liberty/Oppression axis appears probative for the libertarian-conservative overlap, it plays out differently for libertarians. My sense is that while libertarians root liberty in the individual, conservatives implicitly see the family as the fundamental moral/analytical unit and so “liberty” essentially means more about family autonomy than individual autonomy. The larger point, however, is that I think that the central thrust of the research program–that there are some sorts subconscious psychological assumptions underlying all this, seems right to me.

It also seems to me that his second proposition is correct as well: that given this, in politics people do tend to subconsciously screen their evidence in a manner that tends to confirm their preexisting views and dismissing contrary evidence. This is in a large sense consistent with Bryan Caplan’s work in rational irrationality, which is that in politics (unlike markets) there is essentially no cost to being wrong or holding “incorrect” views, so if you gain any utility from doing so then you will persist in holding those views.

One other point that I find really interesting and important about Haidt’s work is his findings on the ability of different groups to empathize across these ideological divides. So in his book (p. 287) Haidt reports on the following experiment: after determining whether someone is liberal or conservative, he then has each person answer the standard battery of questions as if he were the opposite ideology. So, he would ask a liberal to answer the questions as if he were a “typical conservative” and vice-versa. What he finds is quite striking: “The results were clear and consistent. Moderates and conservatives were most accurate in their predictions, whether they were pretending to be liberals or conservatives. Liberals were the least accurate, especially those who describe themselves as ‘very liberal.’ The biggest errors in the whole study came when liberals answered the Care and Fairness questions while pretending to be conservatives.” In other words, moderates and conservatives can understand the liberal worldview and liberals are unable to relate to the conservative worldview, especially when it comes to questions of care and fairness.

In short, Haidt’s research suggests that many liberals really do believe that conservatives are heartless bastards–or as a friend of mine once remarked, “Conservatives think that liberals are good people with bad ideas, whereas liberals think conservatives are bad people”–and very liberal people think that especially strongly. Haidt suggests that there is some truth to this.

If it is the case that conservatives understand liberals better than liberals understand conservatives, why is that? Haidt’s hypothesis is that it is because conservative values are more overlapping than liberals–conservatives have a “thicker” moral worldview that includes all five values, whereas liberals have a “thinner” view that rests on only two variables. Thus, the liberal moral values are constituent part of the liberal views, but not vice-versa. So conservatives can process and affirm liberal moral views and liberals literally cannot understand how someone could be both moral and conservative–the moral values that might be animating a conservative (say, tradition or loyalty) are essentially seen by liberals as not being worth of moral weight. So conservatives who place weight on those values are literally seen as “immoral.”

As an aside, I think the “thinness” of the liberal moral worldview may explain a phenomenon that has puzzled me, which is the speed at which liberal views harden into orthodoxy and the willingness of liberals to use various forms of compulsion to enforce that orthodoxy. Consider same-sex marriage. For conservatives, this is actually quite a difficult topic and one sees a wide variety of opinion and discussion on the “conservative” side of the fence. “Conservative” opinion is not uniformly opposed to same-sex marriage and conservatives who support same-sex marriage are not ostracized or silenced for doing so. I think Haidt gives a sense why: same-sex marriage cuts across a lot of these moral dimensions in different ways–it simultaneously triggers sanctity (for religious conservatives) and authority (tradition), but it also triggers equality/fairness impulses and care/harm impulses for the individuals affected by it. So conservatives, I think, tend to see it as an issue on which reasonable minds can disagree and that those who hold contrasting views are not generally thought to be immoral or evil. I think this sense that there is room for legitimate disagreement is also consistent with the one near-consensus view of conservatives, which is that regardless of one’s position on the issue there is no constitutional right to same-sex marriage, as opposed to allowing the issue to evolve through democratic processes that permit disparate moral and other views to be heard and compromised.

Liberals, by contrast, appear to broach little disagreement from the orthodoxy on this issue (and others for that matter), and I think Haidt gives us a sense why. If they are processing this only through the care and fairness moral value frameworks, then that implies that only immoral people could be opposed to same-sex marriage. And if these people are immoral, then their opposition is hateful and unjustified. So a notion quickly hardens into an orthodoxy–no moral person could oppose same sex marriage. It is then a logical step to a willingness to demonize and try to silence opponents of same-sex marriage as holding not just wrong-headed but illegitimate views, much like the Inquisition, which was premised on the idea that there is potential harm and no value in tolerating “error.” (‘That’s an oversimplification of the Inquisition, of course.) Ditto for more petty forms of censorship and suppression of speech, such as university speech codes.

One thing about Haidt is that my general impression is that by and large libertarians are often particularly skeptical of Haidt’s methodology and conclusions. To some extent that skepticism is warranted: Haidt (by disposition a liberal) conflates an analytical distinction that is crucial for libertarians: the distinction between an act being immoral and illegal. Haidt implicitly assumes that because an act is thought of as moral (i.e., the desire for everyone to have access to health insurance or recycling) it should be mandated and if something is immoral (i.e., drugs or pornography) it should be prohibited. That obviously conflates two different categories. On the other hand, to some extent that skepticism is unwarranted: libertarians insist on that logical distinction, but the reality is that libertarians are a very small percentage of the population. So, in fact, even if Haidt’s conflation of the two categories is not logically defensible, it seems to me that within the scope of his project it is quite defensible–if he is seeking to simply describe and predict how people think, he seems on solid ground in working from the assumption that most people–liberals and conservatives alike–do not draw that distinction and implicitly do conflate morality and legality.

One final word on libertarians: Haidt has written a completely separate scholarly article analyzing the “Psychological Dispositions of Self-Described Libertarians.” While one can quibble with such things, his findings seem largely persuasive to me. In that article, Haidt applies the same tools to self-described libertarians and concludes that there are distinct psychological correlates to to libertarian morality that distinguished libertarians from both liberals and conservatives. Perhaps most striking is the libertarians emphasis on systematization. Now this, I think, is an important insight. For it explains a point that seems to be highly distinctive to libertarians: the recognition by libertarians, often with a high degree of pride, that libertarianism offers the only “consistent” ideology and that is one of the most compelling aspects of it. Well here’s Haidt’s point: Most people simply do not care whether their ideological views are consistent. For most people (liberals and conservatives), consistency is simply not a relevant variable or axis for determining what you believe or your ideological worldview. This explains, I think, the frequent bewilderment that libertarians face when they try to persuade someone to change their mind about, say, a social policy because it is “inconsistent” with their economic policy beliefs. It simply is not a relevant argument to them. This has obvious implications for communicating libertarian ideas to non-libertarians (i.e., the overwhelming number of people in America!).

Which raises a related point: Haidt finds that libertarians place a much higher emphasis on rationality and logical reasoning than do other ideologies. But that doesn’t mean that libertarian beliefs are less-motivated by unexamined psychological predispositions than other ideologies. Again, take the idea that libertarians believe that “consistency” is a relevant variable for measuring the moral worth or persuasiveness of an ideology. But that is not a self-justifying claim: one still must ask why “consistency” maters or should matter. So while libertarians may place a higher stated value on rational argumentation, that does not mean that libertarian premises are any less built upon subjective psychological foundations.

Also, I think it is possible that there are other measures of psychological attributes that might also be correlated with political ideologies and the like, so I don’t think that Haidt’s model is the only one. I think that more research along those lines would be useful.

Anyway, I’ve hardly done justice to Haidt’s argument. And while I’m not certain I agree with all of his conclusions, I think that his basic insights are more right than not and well worth thinking about.

[M]ore and more judges are reading briefs primarily on iPads or other tablets…. The Fifth Circuit judiciary reads the majority of their briefs on iPads, and, from conversations with numerous judges and clerks, the other Circuits are not far behind (though I was told that the Third Circuit is “not as iPad heavy as some circuits”). The best way to know how a particular judge typically reads briefs is to ask — the clerks will likely be happy to help.

Why you should care how the judge reads your brief

Why do iPads even matter? … Lawyers who care about communicating forcefully and clearly should seek to perfect style and typography in addition to substance. The rules of typography are simply different for a screen than for print….

And here are the author’s suggestions (reprinted with his permission, some paragraph breaks added):

A brief written to be read on an iPad should differ from one written for text in three main ways: it should use fewer footnotes, should use a different font, and should avoid confusing hierarchical organization.

Lawyers who expect a brief to be read on an iPad should try to avoid footnotes. One of the advantages of reading on an iPad is that judges can adjust the screen view, zooming in and focusing on the current passage. However, this advantage is lost if footnotes require the reader to constantly scroll to the bottom of the page for citations or substantive material. Worse, the extra scrolling raises the risk that the footnotes won’t be read at all, already a concern with substantive footnotes.

Next, lawyers should carefully consider what font to use in a brief that may be read

[M]ore and more judges are reading briefs primarily on iPads or other tablets…. The Fifth Circuit judiciary reads the majority of their briefs on iPads, and, from conversations with numerous judges and clerks, the other Circuits are not far behind (though I was told that the Third Circuit is “not as iPad heavy as some circuits”). The best way to know how a particular judge typically reads briefs is to ask — the clerks will likely be happy to help.

Why you should care how the judge reads your brief

Why do iPads even matter? … Lawyers who care about communicating forcefully and clearly should seek to perfect style and typography in addition to substance. The rules of typography are simply different for a screen than for print….

And here are the author’s suggestions (reprinted with his permission, some paragraph breaks added):

A brief written to be read on an iPad should differ from one written for text in three main ways: it should use fewer footnotes, should use a different font, and should avoid confusing hierarchical organization.

Lawyers who expect a brief to be read on an iPad should try to avoid footnotes. One of the advantages of reading on an iPad is that judges can adjust the screen view, zooming in and focusing on the current passage. However, this advantage is lost if footnotes require the reader to constantly scroll to the bottom of the page for citations or substantive material. Worse, the extra scrolling raises the risk that the footnotes won’t be read at all, already a concern with substantive footnotes.

Next, lawyers should carefully consider what font to use in a brief that may be read on an iPad. Fonts designed for screen reading are significantly different from those designed to be printed. Most importantly, quality printers print at a much higher resolution—even the retina iPad display has only 264 pixels per inch, less than half the dots per inch of a quality laser printer. As a result, some of the best print fonts can become jagged or difficult to read at screen resolutions, especially when readers zoom in.

This point should not be oversold: Matthew Butterick, author of Typography for Lawyers, notes that “though the iPad has fewer pixels per inch than a laser printer, each of those pixels can be displayed in shades of gray (unlike the laser printer, which has to assemble multiple black pixels to make gray).” This brings the effective resolution of an iPad closer to print, at least in some circumstances. But the bottom line is that selecting a font for a document that may be read on an iPad is even more complicated than for a print document — Matthew Butterick discusses some of the issues online and has an even more thorough discussion in his book.

Perhaps most importantly, briefs written for iPads should avoid the traditional legal hierarchical headings: Part I, Section A, Subsection 1, etc. When flipping though a paper brief, a reader can physically feel if they are near the beginning or end and correctly guess if the Section A they are reading is I.A or VII.A. For digital readers, however, every A looks the same.

This provides a strong reason to depart from tradition and use “scientific” numbering: Part 1, Section 1.1, Subsection 1.1.1. While some argue that scientific hierarchical headings are always superior, when writing for the screen, the case is even stronger. (As an added advantage, the scientific hierarchy avoids the confusion about what to call a “ii”). The same considerations, according to Ilene Strauss, Director of Columbia Law School’s Legal Writing Program, also emphasize “the need to use effective headings,” which can help “keep a reader on track within a smaller screen.”

While adapting to the new medium, lawyers should check their local rules, since some of the better stylistic changes may actually be prohibited. For example, Eugene Volokh, author of Academic Legal Writing, notes that “double spacing lines would be especially bad on iPads, because it would halve the number of lines that can be seen at once on the (already fairly small) screen” but is nevertheless required by many court rules, at least for now.

Matthew Butterick agrees that current court rules may limit iPad-appropriate style and suggests that “the advent of iPad reading [could] be the impetus for courts to set aside their existing document-layout rules, most of which are held over from the typewriter era.” We can certainly hope — and, one day, legal writing could even embrace more dramatic possibilities of digital briefs. But until then, lawyers should know how judges read their briefs and should write with their newly digital judicial audience in mind.

]]>http://volokh.com/2014/01/17/writing-briefs-judges-read-ipads/feed/0How Rational Basis (D)evolved Into A Get Out Of The Constitution Free Cardhttp://volokh.com/2014/01/17/rational-basis-devolved-get-constitution-free-card/
http://volokh.com/2014/01/17/rational-basis-devolved-get-constitution-free-card/#commentsFri, 17 Jan 2014 07:08:26 +0000http://volokh.com/?p=80567I’ve said that the chief accomplishment of Progressive constitutional theory was to prioritize democracy over liberty as the central constitutional value. A consequence of this shift was the creation of a general theory of “judicial restraint,” which was enshrined into constitutional law in the New Deal era. There’s one aspect of this story that I didn’t have space to get into in The Conscience of The Constitution, but which is particularly interesting and important—and I think it’s something VC audiences will appreciate.

Although courts had long expressed reluctance to declare laws unconstitutional, the founding generation had no constitutional theory of judicial restraint. Constitutional avoidance was a pragmatic canon, a sign of respect to the other branches, not a rule of law or a “standard of review” (a concept unknown to the Founders). Anti-court populism came and went in the nineteenth century, but it was not until the Progressive age that judges like Holmes, Frankfurter, and their allies formulated a legal doctrine to the effect that courts were, on principle, unqualified or unauthorized to interfere with the democratic process and obliged to relax constitutional standards accordingly.

(“Democratic,” of course, meant something unique to the Progressives. This was a type of democracy that would consist largely of expert administrators, not accountable to voters; supposed expert bureaucrats immune from actual democratic control, who would administer, rather than govern. The administrative agency is the manifestation of this very special kind of “democracy.”)

]]>I’ve said that the chief accomplishment of Progressive constitutional theory was to prioritize democracy over liberty as the central constitutional value. A consequence of this shift was the creation of a general theory of “judicial restraint,” which was enshrined into constitutional law in the New Deal era. There’s one aspect of this story that I didn’t have space to get into in The Conscience of The Constitution, but which is particularly interesting and important—and I think it’s something VC audiences will appreciate.

Although courts had long expressed reluctance to declare laws unconstitutional, the founding generation had no constitutional theory of judicial restraint. Constitutional avoidance was a pragmatic canon, a sign of respect to the other branches, not a rule of law or a “standard of review” (a concept unknown to the Founders). Anti-court populism came and went in the nineteenth century, but it was not until the Progressive age that judges like Holmes, Frankfurter, and their allies formulated a legal doctrine to the effect that courts were, on principle, unqualified or unauthorized to interfere with the democratic process and obliged to relax constitutional standards accordingly.

(“Democratic,” of course, meant something unique to the Progressives. This was a type of democracy that would consist largely of expert administrators, not accountable to voters; supposed expert bureaucrats immune from actual democratic control, who would administer, rather than govern. The administrative agency is the manifestation of this very special kind of “democracy.”)

The Court devised a general theory of judicial restraint in a series of cases in the 1930s. This story has been told often enough—how, in 1934, in Nebbia v. New York, it abandoned the sixty-year old “affected with a public interest” test for determining the constitutionality of economic regulations and established in its place the “rational basis test”; how it backed away from that deference somewhat in Footnote Four, declaring that from now on a certain category of preferred rights—primarily those that related in some way to the “democratic process”—would receive serious judicial protection.

Less remembered today is the Court’s insistence at the time that the rational basis test was only a rebuttable evidentiary presumption, and not a bar to judicial review. Only nine months after Nebbia, the Court decided Borden’s Farm Products v. Baldwin, reversing a decision by Judge Learned Hand, who had dismissed a complaint prior to fact-finding on the grounds that the legislature might hypothetically have believed the challenged law would help resolve an economic problem: “The situation here was such that the Legislature might fear that the larger dealers would gather into their hands substantially all sales of milk to stores,” Hand had written. “[I]t may have been thought that there were enough [milk producers] in the field already.”

The Supreme Court unanimously disagreed. The presumption of constitutionality, it held, “is a rebuttable presumption” “of fact,” and “not a conclusive presumption, or a rule of law which makes legislative action invulnerable to constitutional assault. Nor is such an immunity achieved by treating any fanciful conjecture as enough to repel attack.”

Emphasizing that it is “imperative” for courts in rational basis cases to engage in fact-finding and “not proceed upon false assumptions,” the Court explained that a plaintiff who challenges an economic regulation “must carry the burden” of proving its irrationality either by facts “which may be judicially noticed, or [by] other legitimate proof…. [T]he statute may show on its face that the classification is arbitrary or that may appear by facts admitted or proved.” Where a statute is challenged under the rational basis test, its validity is “properly the subject of evidence and of findings.” On remand, Judge Hand engaged in fact-finding, and the Supreme Court then reviewed the case a second time, this time upholding the law on the basis of facts Hand found. But it reiterated that “the constitutionality of the challenged provision should be determined in the light of evidence.”

A year later, the Court said it again. In Nashville, C. & S. L. Railway v. Walters, a railroad company challenged the constitutionality of a Tennessee law that imposed various costs related to railway crossings, and the trial court engaged in extensive fact-finding before striking down the statute as irrational. The state supreme court reversed, holding that fact-finding was improper under the rational basis test. Regulation of railroads “involves matter[s] of legislative policy,” and since that policy could have been thought consistent with a legitimate government interest, it was inappropriate for the trial judge to resort to evidence when determining the constitutionality of that regulation.

In a decision by Justice Brandeis, the Supreme Court reversed, declaring that the state court was wrong to “decline[] to consider the special facts.” “A rule to the contrary is settled by the decisions of this Court. A statute valid as to one set of facts may be invalid as to another. A statute valid when enacted may become invalid by change in the conditions to which it is applied.” A court should invalidate an economic regulation if its arbitrariness is proven by “the evidence,” and the state court “obviously erred in refusing to consider [those facts].”

In 1938, the Court repeated the point again. In Polk Co. v. Glover, it again reversed dismissal of a rational basis challenge, this time involving the constitutionality of a Florida law governing the labeling of citrus fruit. The district court threw out the case because the law’s purpose was “to prohibit fraud and deception, and [the statute] is, therefore, clearly within the police power.” Yet the Supreme Court again ruled that the district court “erred in dismissing,” because “the facts alleged in the [complaint] were sufficient to entitle the plaintiffs to an opportunity to prove their case, if they could, and that the court should not have undertaken to dispose of the constitutional issues…in advance of that opportunity.

As I explain in more detail in this paper, Borden’s, Walters, and Polk characterized the rational basis test not as a formalistic set of magic words or a sleight-of-hand whereby the judge can imagine justifications for a law and then uphold its constitutionality while ignoring the actual facts. Instead, these cases characterized that test as only an evidentiary presumption which could be overcome by sufficient proof.

Sadly, in the 1950s, the Court began to transform the test into what Borden’s insisted it should not be: an absolute barrier to judicial review. Cases like Berman v. Parker—which held that a legislature’s acts are “well-nigh conclusive” of constitutionality—and Williamson v. Lee Optical sent lower courts the message that if the judge could simply imagine some justification for the law, that was enough to uphold its constitutionality.

Consider the recent decision in Colon Health Centers v. Hazel. There, the plaintiffs challenged the constitutionality of a law restricting the ability of medical clinics to obtain new equipment. They argued that these laws violated the Commerce Clause, as well as the Due Process Clause of the Fourteenth Amendent. The complaint was exceptionally detailed and specific. Yet the court dismissed the lawsuit before hearing any facts, on the grounds that evidence is irrelevant under the rational basis test, so long as the court can imagine a possible justification for the law: evidence, the judge held, would be “beside the point.” This conception of rational basis makes it into a “Get Out Of The Constitution Free” Card for the government. It merely needs to say the law is constitutional, and any lawsuit challenging its constitutionality will be thrown out, regardless of the actual facts. That’s why my friend Clark Neily refers to the test as “the rationalize-a-basis test.”

Yet the Court has been of more than one mind about rational basis. It has ruledinfavor of plaintiffs in rational basis cases, indicating that that test cannot be used at the dismissal stage to throw out well-pleaded allegations of unconstitutionality. Lower courts have frequently refused to dismiss rational basis challenges, and Courts of Appeal have even reversed dismissals and ordered trial judges to give plaintiffs the chance to prove their cases.

Examine these symptoms of doctrinal schizophrenia: in FCC v. Beach Communications, Justice Thomas declared that the Court “never require[s] a legislature to articulate its reasons for enacting a statute,” so “it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature.” Instead, judges can simply manufacture their own reason for the law, and “[w]hether the posited reason…actually motivated Congress is ‘constitutionally irrelevant.’” Yet that same year, the Court said that the rational basis test requires all laws to have “some footing in the realities of the subject.” And three years later, that “[e]ven in…case[s] calling for the most deferential of standards, we insist on knowing the relation between the [law] and the object to be attained. [This] gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature…and it marks the limits of our own authority…. By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law.” Some have tried to sub-divide the rational basis test into different sub-species, but the Court has ever endorsed that, and such a proliferation of standards of scrutiny reveals the whole enterprise for the ad hockery that it is.

I think the rational basis test was a mistake to begin with. But even those who support it in the abstract must admit that today it has degenerated into a confused mish-mash of contradictory pseudo-rules leading to inconsistent, frequently indefensible, outcomes.

]]>http://volokh.com/2014/01/17/rational-basis-devolved-get-constitution-free-card/feed/0New Hampshire House Passes Marijuana Legalization Lawhttp://volokh.com/2014/01/16/new-hampshire-house-passes-marijuana-legalization-law/
http://volokh.com/2014/01/16/new-hampshire-house-passes-marijuana-legalization-law/#commentsFri, 17 Jan 2014 04:46:16 +0000http://volokh.com/?p=80570The New Hampshire House of Representatives recently became the first state legislative house to pass marijuana legalization. Legalization measures adopted in Colorado and Washington in 2012 passed by referendum. As the above-linked Concord Monitor article notes, the law faces tough sledding in the state senate, and could well be vetoed by New Hampshire’s Democratic Governor Maggie Hassan. Nonetheless, it is an incremental step forward for the cause of legalization, which has been gaining ground in both public and elite opinion in recent years. [...]

]]>http://volokh.com/2014/01/16/new-hampshire-house-passes-marijuana-legalization-law/feed/0Empire State Building Owners Sue Photographer for Taking Topless Photograph on the 86th Floor Observatoryhttp://volokh.com/2014/01/16/empire-state-building-owners-sue-photographer-taking-topless-photograph-86th-floor-observatory/
http://volokh.com/2014/01/16/empire-state-building-owners-sue-photographer-taking-topless-photograph-86th-floor-observatory/#commentsThu, 16 Jan 2014 23:00:30 +0000http://volokh.com/?p=80562See the complaint, and a New York Daily News story:

Empire State Building management has filed a $1.1 million lawsuit against photographer Allen Henson for taking pictures of a topless woman at the skyscraper’s packed 86th floor observatory in August.

Here’s one of the photos, which I imagine originally didn’t contain the black rectangle; the Daily News story has more.

The owners’ theory is that the photographer (Allen Henson) is guilty of tortious trespass, for which the owners seek $100,000 compensatory damages and $1 million punitive damages. But while I sympathize with their disapproval of the photographer’s behavior — to quote the complaint, “[i]n order to continue to attract visitors, including families, to the Building and the Observatory, … ESB has to maintain both the image and the fact that the Building and the Observatory are … [an] appropriate place for families and tourists” — I just don’t see how their theory is sound.

It’s true that a property owner can allow people onto its property only on the condition that they behave in a particular way, and exceeding this consent might constitute tortious trespass. To quote the Restatement (Second) of Torts § 168, “A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with.” But, according to the Complaint itself, no such condition was clearly expressed to visitors. The Complaint says,

The admission ticket for the Observatory states, in pertinent part, that ESB “may refuse admission or expel any person whose conduct is objectionable.”

But that, on its face, simply reserves ESB’s right to kick people out, or not let them in. It doesn’t purport to legally limit the scope of visitors’ conduct, especially since the word “objectionable” is so vague that [...]

Empire State Building management has filed a $1.1 million lawsuit against photographer Allen Henson for taking pictures of a topless woman at the skyscraper’s packed 86th floor observatory in August.

Here’s one of the photos, which I imagine originally didn’t contain the black rectangle; the Daily News story has more.

The owners’ theory is that the photographer (Allen Henson) is guilty of tortious trespass, for which the owners seek $100,000 compensatory damages and $1 million punitive damages. But while I sympathize with their disapproval of the photographer’s behavior — to quote the complaint, “[i]n order to continue to attract visitors, including families, to the Building and the Observatory, … ESB has to maintain both the image and the fact that the Building and the Observatory are … [an] appropriate place for families and tourists” — I just don’t see how their theory is sound.

It’s true that a property owner can allow people onto its property only on the condition that they behave in a particular way, and exceeding this consent might constitute tortious trespass. To quote the Restatement (Second) of Torts § 168, “A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with.” But, according to the Complaint itself, no such condition was clearly expressed to visitors. The Complaint says,

The admission ticket for the Observatory states, in pertinent part, that ESB “may refuse admission or expel any person whose conduct is objectionable.”

But that, on its face, simply reserves ESB’s right to kick people out, or not let them in. It doesn’t purport to legally limit the scope of visitors’ conduct, especially since the word “objectionable” is so vague that it can’t be understood as anything other than “We can kick you out if we don’t like what you’re doing.” Then the Complaint says,

In addition, ESB has specific rules that it requires commercial photographers and filmmakers to follow in order to apply for and obtain permission from ESB to use the Building and the Observatory in commercial film and photo shoots. As set forth on the section of ESB’s official website titled “Film & Photo Shoots”:

The Empire State Building receives requests to use its trademarked image in films and photo shoots throughout the year.

We will consider requests that:
• Showcase ESB positively, respectfully and responsibly
• Feature ESB, and not just views/skyline shots from its Observatory

To request permission for filming or a photo session, please submit the following information:
• Film I production company
• Contact name, title …

But the Complaint doesn’t claim that these rules were made known to Henson. And while commercial use of the building’s trademarks might be trademark infringement even without notice to the user, the photos shown in the Daily News article don’t, in my view, infringe the building’s trademarks or even use them. (Indeed, the owners didn’t claim trademark infringement in their complaint.) So it seems that the trademark use policy wouldn’t even apply to Henson’s behavior.

Indeed, if the Building owners were right in their legal analysis, they could sue people for $1.1 million not just for taking topless photos, but for taking any photos that are seen as “objectionable,” or that don’t “[s]howcase ESB positively [and] respectfully.” The Building owners might be able to impose such obligations on visitors, for instance by requiring all visitors to specifically agree to them (and defining the obligations more precisely). But the general policies they mention in the Complaint don’t, I think, impose any such general obligations as to conduct such as Henson’s.

Note that whether property owners can ban female toplessness from a place of public accommodation if they don’t ban male toplessness would be an interesting question of public accommodation discrimination law. I’m inclined to say that, just as many courts have concluded that Title VII’s ban on sex discrimination in employment doesn’t necessarily preclude different dress codes for male and female employees, courts might conclude likewise as to public accommodation antidiscrimination law and different nudity prohibitions for male and female visitors; but it’s not clear. It’s also not clear whether the Building owners do have different rules for men and women; they might prohibit male toplessness, too. (Compare People v. Santorelli (1992), which held that female toplessness in public isn’t generally illegal in New York, but avoided reaching the Equal Protection Clause challenge to the statute involved there.)

“I don’t know,” [Henson] told the Voice, thoughtfully. “I would really like to take this seriously, but it just feels like somebody got drunk last night and said, ‘Fuck it, let’s sue him for a million dollars.'”